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You are taken to court for rent arrears

This advice applies to Scotland

This information applies to Scotland

I have received a claim for possession from the sheriff court because I have not paid my rent. What can I do?

If you do not pay your rent, the landlord has a legal right to ask a court to evict you. Public sector landlords must offer you certain help before this happens. If you have received a claim for possession and want to try and stay in your home then you must act quickly.

  • If you cannot afford to pay your rent because you have a low income, you may be able to get some help with the payments by claiming housing benefit or universal credit.
  • If you can afford to pay your rent and pay a little extra towards any arrears you should talk to your landlord. The landlord may be willing to make an agreement with you and stop the court action. It is important that you keep to the agreed payments.
  • If the landlord will not agree to accept your payments, then you should reply to the claim and attend the court hearing. If you can make a reasonable offer of payment, the court may accept it and allow you to stay in your home. If the court does not agree to your offer, you will be given a date when you will have to leave your home. The costs of the court hearing will also be added to the rent that you owe the landlord.

About being taken to court for rent arrears

If you have rent arrears, your landlord may go to court to get you to pay back the arrears and to evict you. This is called seeking possession. To do this, your landlord will need to follow a procedure which involves getting a court order. If you are a Scottish secure tenant, your landlord must have met certain requirements before applying for a court order. You can't be made to leave your home without the court granting a court order and issuing a notice telling you a date when the landlord is going to repossess the property. If your landlord does make you leave without taking you to court first, this is against the law.

Even if your landlord takes you to court to evict you, you may be able to persuade your landlord to let you stay in the property if you agree to pay back the money you owe and you don't fall behind with your rent again.

It’s important to know what type of tenancy you have so that you can work out exactly what steps your landlord has to take before evicting you.

If you’re not sure what type of tenancy you have, see Renting from a private landlord and Renting from a public sector landlord.

You can also go to your local Citizens Advice Bureau for advice about the type of tenancy you have - where to get advice.

There is more information about tenancies including a tenancy checker on the Shelter Scotland website.

For more information about what your landlord must do before evicting you for rent arrears if you are a Scottish secure tenant, see Renting from a public sector landlord.

For more information about coming to an agreement to pay off your rent arrears, see Paying off your rent arrears.

Notice to quit

Depending on your circumstances and what type of tenancy you have your landlord may have to serve you with a notice to quit which formally ends the tenancy agreement. The notice to quit must be served using a specified procedure. If this procedure isn’t followed it might mean that the court will not accept the landlord’s application to evict you.

There is more information about the notice to quit and Assured tenancies and Short assured tenancies on the Shelter Scotland website.

Notice of proceedings

A notice of proceedings is a formal document telling you that your landlord intends to go to court to evict you and take possession of the property. Depending of what kind of tenancy you have, your landlord will have to serve you and other people living in the property with a notice of proceedings using a specified procedure.

Check the notice is correct

You should check that the notice to quit or notice seeking possession meets the legal requirements, for example that the information on the notice is correct. If it isn’t this could stop or delay your landlord from taking further action.

You should get advice from an expert housing adviser about this. Your local Citizens Advice Bureau will be able to help, or put you in touch with someone who can - where to get advice.

The summons

If your landlord is taking you to court you will get a summons from the court stating that the landlord is seeking to take possession of the property. The landlord might also seek a decree from the court for payment of arrears. The summons will state the time, date and place of the court hearing and the grounds on which the landlord is seeking possession. It may also give details about the amount of arrears, the steps that the landlord has taken so far and what is known about your financial circumstances, for example if you are claiming housing benefit.

You should check all the information in the summons is correct and meets the legal requirements. If it doesn't, this could stop or delay your landlord from taking further legal action. For more information about on how to check whether the amount on the summons says you owe is correct, see Things to check when you have rent arrears.

If you get a summons contact your landlord to see if you can do anything to stop court action. For example if you can pay off some of the arrears immediately and the rest by instalments the landlord might agree to stop taking you to court.

If you think that there are good reasons why you shouldn’t be evicted you can reply to the summons but you must get advice about what to say because this could affect the outcome of your case.

You should get advice from an expert housing adviser about this. Your local Citizens Advice Bureau should be able to help, or put you in touch with someone who can - where to get advice.

Paying back what you owe

You may be able to pay off all the arrears before your case goes to court. If you can do this, it will probably stop court action going any further and you won’t have to leave your home.

Even if you can’t pay all the arrears off, you may be able to come to an agreement with your landlord to pay back the money over a longer period of time. This would allow you to stay in the property and may mean you can avoid going to court. This would also mean that you don’t have to pay court costs. However, your landlord could still take you to court even if you come to an agreement. In this case, the sheriff is likely to say that you can stay in your home as long as you stick to the agreement.

For more about coming to an agreement with your landlord, see Paying off your rent arrears.

Contact your landlord straight away and let them know your situation. Even if you have no money to pay back the arrears, if you can, you should carry on paying your rent.

If there are reasons why you can't pay your rent or the arrears, put these in writing to your landlord and keep a copy of your letter or email. For example, you may be waiting for a Housing Benefit claim to be dealt with.

You must also inform the local authority Housing Benefit office about your position.

Your landlord refuses rent payments

If your landlord refuses to accept rent payments after they’ve served you with a notice to quit or notice seeking possession, you must put the money aside. This is because you still have a legal duty to pay rent. If you can save the money, put it into a separate bank account. This will help you if your case does go to court. You can use the money to show that you’re willing and able to pay off the arrears and that it’s not reasonable for the court to evict you.

If the court grants an eviction order, you also have a legal duty to pay the landlord until you are actually evicted. This payment is not actually called rent but violent profits.

Before you go to court

If you don’t pay off the arrears or come to an agreement your landlord will apply to the court for a court order to evict you.

You can get help to check what's in the Summons from your local Citizens Advice Bureau - where to get advice.

For more information on how to check whether the amount the summons say you owe is correct, see Things to check when you have rent arrears.

If you need more time

If you need more time to prepare for the court hearing, you can ask for an adjournment. This means the court hearing will be postponed to give you more time. To ask for an adjournment, contact your landlord or their solicitors. If they agree, you or the landlord should then write to the court saying you have both agreed to an adjournment. The court will normally adjourn the case if you and the landlord have both agreed to it.

If your landlord doesn’t agree to an adjournment, or it isn’t possible to contact your landlord, you can turn up at court on the date of the hearing and ask for an adjournment at the hearing itself.

Getting evidence together

Before the date of the hearing, you should get together all the evidence you’ll need to make your case. For example, you may need to take proof of your financial circumstances like your wage slips and your bank statements. If you are owed money, for example if you are owed Housing Benefit or another benefit, you should try and get written confirmation of this that you can show to the sheriff.

Here are some examples of things you might be able to say to the sheriff:

  • you don't think you owe the money your landlord has said you do. For example, you might think someone else is responsible for the money owed, or your landlord hasn’t worked out the amount you owe correctly
  • you are owed Housing Benefit which would pay off all or some of the arrears or you are entitled to Universal Credit and your claim has still to be settled
  • the gradual introduction of Universal Credit and transition from other benefits has made it very difficult to budget for all the normal costs like rent
  • the reasons why the arrears have built up. For example, you may have lost your job, or been too ill to work. The court can take these reasons into account when deciding whether to evict you or let you stay in the property. If your circumstances have changed and you can start making payments again, the court may also take this into account
  • you would suffer exceptional hardship if you had to leave the property straight away. An example of exceptional hardship is where you're going to be homeless and won’t get rehoused by your local authority. The court may be able to delay your eviction to give you more time to find somewhere else to live
  • you’re the tenant of a social housing landlord and they haven't followed the proper procedures
  • you want to make a counterclaim for repairs your landlord should have carried out. You should get advice before doing this.

If you've already made payments towards the arrears, the court will need to see evidence, for example, a receipt. If your landlord has refused to accept these payments, but you’ve put the money aside, take proof of this money to show the court.

You should bring a copy of your financial statement or budget sheet. This is a statement showing how much money you have coming into your household, how much you spend and how much you have left over to pay the arrears.

For more information about drawing up a financial statement or budget sheet, see our budgeting tool.

Keep paying your rent

If you can, keep paying your rent as normal during this period and start making payments towards the arrears. Pay off the amount of money that you can afford. If your landlord won’t accept these payments, put the money aside.

The court hearing

It's very important that you go to the court hearing to find out what the sheriff orders and get a chance to affect the outcome.

Try to get help and advice before you go to court. If you haven’t got help before the day of the hearing, there may be a court desk where you can get help or get advice before the hearing if you need it.

You should be able to get free advice from a Citizens Advice Bureau - where to get advice. If you are entitled to legal aid, you can get advice fom the Scottish Legal Aid Board.

To find out if you can get legal aid, call the Legal Aid Helpline on 0845 122 8686. It is open 7 days a week 7am to 11pm.

If you have a disability

If you have a disability, check whether suitable facilities are available at the court. You can find out access details of the court on the Scottish Courts and Tribunals Service website.

What decisions can the sheriff make

At the court hearing, the sheriff will listen to both sides of the story and look at the evidence brought to court. The hearing will be in private and it generally won’t last very long.

At the end of the hearing, the sheriff will make one of the following decisions to:

  • dismiss the case; or
  • grant a court order to evict you; or
  • sist the case, for example to give you the chance to stick to a repayment scheme which you have agreed with your landlord; or
  • continue the case to another hearing, for example so that you can provide more evidence to support your case.

If your landlord gets a court order to evict, you don’t have to leave the property by the date on the order. Your landlord will need to get special permission to put you out of the house and a copy of the eviction order called an Extract Decree. It usually takes 14 days for the landlord to get these court orders – see below.

Sometimes it’s possible to persuade your landlord not to apply for the Extract Decree and Warrant of Ejection for example, because your financial circumstances are going to change or your Housing Benefit claim may come through and pay off all the arrears.

For more information about how to deal with your landlord when you have rent arrears, see Paying off your rent arrears.

What happens if I don’t attend the court hearing

If you don't go to court and you aren't represented by someone else the sheriff will make a decision without hearing your side of the story. You can ask the court to recall the case but you must do this as soon as possible and you must be able to persuade the court that you have a good reason why you didn't attend the court hearing. To get help to do this go to your local Citizens Advice Bureau - where to get advice.

If the case is recalled you must make sure that you attend court or someone is there to represent you. You can represent yourself but it might be better to have an adviser or a solicitor to state your case.

What happens if my landlord has a court order and goes ahead with the eviction

If your landlord has got a court order and wants to evict you a notice must be served to tell you that the landlord is going to take possession of the property and evict you. This notice will include the date by which you must leave the property. This eviction date is usually at least 14 days after the court hearing.

At this stage you can still try to negotiate with your landlord. You can get help from your local Citizens Advice Bureau - where to get advice.

If your landlord refuses to stop the eviction you must move out of the property by the date of the possession otherwise the sheriff officers will evict you. For more information about the powers of sheriff officers, see Sheriff officers.

If you are going to become homeless you must contact your local authority to find out how they can assist you in finding somewhere else to live. There is more information about homelessness on the Shelter Scotland website.

Preparation for eviction

It may only be a few weeks before you have to leave the property. You should get some advice and support from an experienced adviser to help you to:

  • confirm where you are going to be living - the local authority should have been in touch with you already. If it hasn’t been in touch you must get in touch with the housing department if you are going to be homeless because it has a duty to provide you with accommodation
  • organise what to do with your possessions - you may have to move to a smaller property but you should try to keep any valuables
  • find moderately priced removers or hire a van
  • make a list of all the agencies you have to notify about your move - particularly gas, electricity and telephone services who could continue charging, the local authority council tax department and the Post Office redirection service
  • organise a new school for your children if necessary and a doctor near to your new home
  • contact the sheriff officers to ask for details of the exact date of the eviction if you haven't already been informed.

You can also get help from a Citizens Advice Bureau - where to get advice.

Further help

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