As the majority of Scotland, from the 17th May, moves into Tier 2 under the Coronavirus Regulations, there is much to be rejoicing about. Being able to enjoy a pint in your local pub for one, without having to shield under the cover of a weather shredded canopy. Unfortunately, Scotland in May is not the best weather to be enjoying a pint in a garden. Nor is it the best time to be losing your home, if there ever is a best time.
For some, however, that is what the ending of Lockdown will mean for them. Not the ending of worry and stress, but just the beginning of it.
We are not yet out this Coronavirus Crisis and although most of the emergency rules that were put in place to protect people and businesses will remain in force until the 30th September, the ones protecting tenants and homeowners from eviction and repossession are not amongst them.
Instead, from the 17th May, any area of Scotland that slips into Tier 2 will also see the ban on evictions also being withdrawn, including Glasgow, which is borderline Tier 3, but is still going into Tier 2, despite the First Minister saying she is concerned. [A last minute decision on Friday, 14th May now means Glasgow will remain in Tier 3 for the next week at least].
What Protections do Tenants have?
There will remain some protections for tenants, however. Landlords will still be required to serve 6-month Notices to Leave (private landlords) and Notice of Intentions to Raise Proceedings (Social Registered Landlords) before they begin any legal action.
These must be served when your Landlord wants to evict you and take you to the First Tier Tribunal for Scotland (Housing and Property Chamber) (private landlords) or the Sheriff Court (social landlords). These protections will remain in place until the 30th September 2021. Previously landlords only had to give you 28 days’ notice, but these were temporarily extended due to Covid 19 (there are exceptions when your landlord wants to evict you for anti-social behaviour or if you have committed a criminal offence).
However, where your landlord has already served one of these notices on you and the six months has expired, if they now take you to the Tribunal or Court and obtain a Court Order, they will after the 17th May be able to begin eviction proceedings.
Where they have already obtained an Order allowing them to evict you, and your area moves into Tier 2 they may now be able to evict you.
What Protections do Homeowners have?
When a secured lender or mortgage provider wants to repossess your home, they must first serve on you a Calling Up Notice that gives you 2 months’ notice before they can take you to court and request the court provides them with an Order allowing them to repossess your home.
Once they take you to Court, however, and obtain an order, the procedure for removing you from your home is the same as it is for a Tenant.
What is the Procedure for Evicting you or Repossessing your Home?
If a Landlord or Mortgage provider wants to evict you, they must first serve on you a Charge for Removing, served by a Sheriff Officer, ordering you to leave the property. This must give you 14 days’ notice.
If you have still not left the property after those 14 days, the Landlord or Mortgage Provider must then arrange a Sheriff Officer to send to you a Notice of Removal, which must give you at least 48 hours’ notice of the day and time that the Sheriff Officer will attend your home and remove you.
What can you do to Prevent a Repossession or Eviction?
The most important thing you can do is seek advice as soon as you begin experiencing financial difficulties. However, even if you leave it to later, it is never too late to seek advice.
So that means even after a Notice from your Landlord indicating they want to take you to Court or a Notice from your Mortgage Provider telling you that they are calling up your Mortgage.
Ideally, you want advice and representation before your case is heard by the First Tier Tribunal or the Sheriff Court. It is in your best interest to be represented at that hearing.
However, even if you have done nothing and a court order has been granted against you and a Charge for Removal, and even a Notice of Removal has been served, you may still be able to stop the eviction or repossession right up to the point before the Sheriff Officers remove you from your home.
Minute of Recall
Minutes of Recall are legal remedies that you can use up to the point before you are removed from your home. They can be granted if you were not represented at the Tribunal or Court Hearing, but can be complex, so you should seek advice from a solicitor or your local advice agency as soon as possible.
How Long do Court Order for Eviction and Repossessions Last?
When a Court or Tribunal grants an Order for your eviction or the repossession of your home, it normally has two parts. The first part allows the Landlord or Mortgage Provider to remove you; the other part is the part where they seek money, such as for rent arrears or your mortgage.
Normally, Landlords and Mortgage providers will seek to evict or repossess your home shortly after receiving the court order, using the above procedure.
However, in the case of Tenants, with Social Landlords, the Landlord, when the case involves rent arrears, must use the eviction part within 6 months of getting the Court Order (sometimes the Court can set a shorter period). However, under emergency Coronavirus Laws, they may get longer as the rules governing the eviction ban suspended the running of this 6-month period. This means where the Landlord got an eviction notice one month before the eviction ban, when it ends, he will still have another five months to use it, even though the eviction ban was first introduced in December 2020.
This means many Social Landlords in rent arrears cases, may be able to use Court Orders that, under normal conditions, would have been too old.