From 4 April 2011, any case which involves an eviction from heritable property, including property let on a Scottish Secure Tenancy must comply with the procedure outlined in Sections 214 – 219 of the Bankruptcy and Diligence etc. (Scotland) Act 2007.
The provisions make service of a Charge for Removing mandatory prior to an eviction taking place.
The Bankruptcy and Diligence etc. (Scotland) Act 2007 (Commencement No. 8 and Transitional) Order 2011/179 (Scottish SI) brings into force Part 15 of the Bankruptcy and Diligence etc. (Scotland) Act 2007 (“the Act”) on the 4 April 2011 which relates to actions for recovery of possession of property let on Assured and Short Assured tenancies under the Housing (Scotland) Act 1988 and Scottish Secure Tenancies and Short Scottish Secure Tenancies under the Housing (Scotland) Act 2001.
What decrees do the new provisions cover?
For the purposes of the new procedure, “a decree for removing from heritable property”, in terms of the legislation, includes most forms of decree for ejection or removing, including ejections by lenders, Landlords of rented properties under the Housing (Scotland) Acts 1988 and 2001, and some properties covered by the Agricultural Holdings (Scotland) Act 2003.
The provisions will apply to all evictions carried out by Housing Associations and Local Authorities. They also apply where the eviction is of a squatter or travelling people.
What are the new requirements?
A Housing Associations or Local Authority seeking to enforce a decree for Recovery of Possession and evict a tenant, must now serve a Charge for Removing, giving the occupant a minimum of 14 days notice of an eviction. On cause shown, a Court may dispense with or vary this notice period, for example if there are grounds of urgency to justify doing so. The form of Charge can be seen here.
Following expiry of the period of Charge the defender and any occupant deriving right or having permission from the defender, and their effects, may be removed from the subjects.
The judicial officer attending to the eviction must also now make an inventory of any items removed from the property and, if so ordered by the Court, take steps for the ‘preservation’ of these items. The Court may specifically order that the occupant is to be liable for the costs of preserving the items removed. No definition of ‘preservation’ is given and no time limits for this are specified.
In cases where tenants are removed from furnished lets it may be that the requirement to prepare an inventory is avoided if the tenants effects are secured within the property and the tenant is afforded a supervised opportunity to return to the property and remove their possessions.
It remains to be seen whether the Court will, as a matter of course, make orders for preservation of items removed in undefended actions.
An eviction must be carried out between 8am and 8pm and, unless prior authority is obtained from the Court, must not take place on a Sunday or public holiday.
The new provisions will not apply to decrees for removing obtained, granted or made, as the case may be, prior to 4 April 2011.
It is unclear whether a fee will be payable for the preparation of the inventories. The Acts of Sederunt governing fees charged by sheriff officers do not specify a separate statutory charge. A further Act of Sederunt is expected and will detail the fees sheriff officers can charge for preparation of an inventory together with a style of inventory. There is already a statutory fee for service of the Charge (currently £48.80 for service on a single party).
For Housing Associations and Local Authorities who have not been serving Charges for Removing as a matter of course, there will be the additional cost in now having to do so. It is unlikely that they will be able to recover this outlay from tenants, particularly where tenants have been evicted due to rent arrears. Housing Associations and Local Authorities must therefore be prepared for an increase in up front outlays, particularly if required to preserve effects removed from a property upon eviction.
The usual practice of judicial officers is to give 14 or more days notice of eviction, as a matter of good practice. However for reasons of practicality, particularly in cases of anti-social behaviour or large arrears of rent, shorter notice of eviction is often given. Shorter notice will not now be possible unless specific dispensation is received from the Court to shorten the notice period. The new rules are made in the spirit of ensuring that there is no undue hardship on defenders being removed from their property and to ensure time is allowed for alternative arrangements to be made. Likewise, inventories of effects within the property are often provided by sheriff officers as a matter of course, following eviction. If no statutory fee is prescribed in relation to these inventories, it may be that the sheriff officers will use their discretion and simply absorb any associated cost. What may be of concern is the attitude to be adopted by the Courts in respect of a pursuer being ordered to preserve the belongings of those removed from property and the costs of doing so. The risk of the occupier being liable for storage costs of items being left within a property is unlikely to be a deterrent for tenants already owing substantial arrears.
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