Practical action by tenants

The first step could be to contact the lender to explain the tenant's position, and to try to negotiate with the lender with regard to gaining more time if the tenant has somewhere to move to and does not wish to stay on in the accommodation. The tenant could also try to persuade the lender to take over the tenancy and to accept rent, thus creating a new tenancy agreement. In practice, lenders will be very reluctant to do this as their priority will be to sell the property and indeed they have a legal obligation to sell the property as swiftly as possible for the best reasonable price.

Where the lender is threatening, through sheriff officers, to evict without a court order of eviction against the tenant, a solicitor will need to be contacted. The solicitor will need to get in touch with the lender, explain the legal position and advise that proceedings for interdict and interim interdict will be commenced if the lenders propose to evict without court decree. See the Tamroui [1] case for an example of where this course of action was taken.

The tenant could also withhold their rent. It is an implied term in all tenancy agreements that the landlord has authority to create the tenancy agreement and gives the tenant full possession of the property. If a lender is threatening possession, the landlord is clearly in breach and rent may be withheld. This is potentially a risky strategy and the tenant should get specialist advice if they intend to withhold rent.

A tenant may simply wish to look for new accommodation and move out if s/he does not want to pursue any other course of action.

If the lender subsequently raises an action for recovery of possession the tenant may decide to defend the action on the basis that the relevant actions have not been complied with:

• for assured tenants - the requirements of the Housing (Scotland) Act 1988 [2]

• for private residential tenants - the Private Housing (Tenancies) (Scotland) Act 2016 [3]

They may also argue that the legal action is incompetent for any other reason. Although tenants can represent themselves at the First Tier Tribunal Housing and Property Chamber, the services of a solicitor is recommended.

The tenant may contact the landlord to see if the landlord can make arrangements, even at a late stage, to negotiate with the lender to arrange repayment of the arrears. In some cases it is possible to stave off the recovery of the property by the lender.

In a small number of cases the tenant may be in a position to and wish to purchase the property. In this situation s/he may want to negotiate buying the property through their solicitor.