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You are a public-sector tenant taken to court for rent arrears

This advice applies to Scotland

Coronavirus - protection for tenants

The Scottish government has introduced new measures to protect renters. If you're behind with your rent, your landlord can't evict you unless they give you six months' notice. Your landlord must still follow the correct legal procedure in the courts.

Read more about what to do if you have rent arrears.

Face coverings have to be worn in court from 31 August 2020.

Eviction ban

There is currently a ban on the enforcement of evictions in level 3 and 4 areas. You can’t be evicted in these areas unless your eviction is for antisocial or criminal behaviour.

The ban stops evictions from being carried out. It doesn’t prevent eviction hearings from taking place and an eviction order can still be granted by the court. 

You can check the level where you live using the Scottish government protection level checker.

Get the latest information about evictions on the Shelter Scotland website.

This information applies to Scotland.

If you don't pay your rent, the landlord has a legal right to get a court order to evict you.  

If you are asked to leave your home by the landlord you should consult an experienced adviser, for example at a Citizens Advice Bureau - where to get advice.

Are you a public-sector tenant

It is important to know whether you are a private-sector tenant or a public-sector tenant because the eviction process the landlord needs to follow is different for each.

You are a public-sector tenant if you live in property rented to you by:

  • a local authority, or
  • a registered social landlord (that is, a housing association or housing co-operative registered with the Scottish Housing Regulator). This includes (HMOs) rented by registered social landlords.

Anyone who is a tenant of the above will be a Scottish secure tenant or exceptionally a short Scottish secure tenant.

In some cases if you rent a property with a Mid Market rent you will be renting from a private company that has been created by a housing association. This should be made clear in your tenancy agreement. This means that you are a private-sector tenant and not a public-sector tenant. 

Your tenancy agreement should explain what type of tenancy you have and your rights.

You can find further information to help you check what your tenancy is from on the following pages:

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

If you are not a public-sector tenant you can check Private sector tenants taken to court for rent arrears.

What can happen if you have rent arrears

Contact your landlord straight away and let them know your situation. 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.

As 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.

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

You've received a 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. Your landlord will have to serve you and the other people over 16 years old living in the property, with a notice of proceedings using a specified procedure.

You should check that the notice of proceedings 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.

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

Paying back what you owe

You may be able to pay off all the arrears before your case goes to the court. If you can do this, it will probably stop legal 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 legal action. 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, it is likely you will be allowed to 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.

Keep paying your rent

Contact your landlord straight away and let them know your situation. If you can, keep paying your rent as normal throughout this process 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.

Your landlord refuses rent payments

If your landlord refuses to accept rent payments after they’ve served you with a notice seeking possession, you must put the rent 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 an eviction order is granted, you have a legal duty to pay the landlord until you are actually evicted.

Receiving the summons from the sheriff court

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

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 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.

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, Universal Credit 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 or Universal Credit and this would pay off all or some of the arrears
  • the reasons why the arrears have built up. For example, you may have lost your job, been too ill to work or delays in receiving Universal Credit have made it difficult for you to budget. 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.

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 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 from the Scottish Legal Aid Board. To find out if you can get legal aid, call the Legal Aid Information Line on 0131 240 2082. 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 are due to attend. You can find details of all the courts on the Scottish Courts and Tribunals Service website and what their accessible facilities are. 

What decisions can the court 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 or Universal Credit 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 you 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 may have a duty to provide you with accommodation
  • contact your utility companies - for your gas, electricity and telephone services so they don't continue charging you after you have left
  • contact your local authority council tax department - to let them know you are leaving. You may wish to set up a postal redirection service with the Post Office.
  • 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.

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