Private Tenants: Helping you to keep your home and where to get advice

You have the right to defend legal proceedings for eviction. When you receive court papers - known as a 'summons' - the most important thing to do is make sure you have a solicitor or advisor to represent you in court. 

So please act quickly and contact one of the free advice agencies listed at the end of this leaflet so they can represent you in court when the case first calls. You will need to meet with a solicitor or advisor prior to your case calling in court, so please remember to bring the following paperwork with you:

• the Court papers served on you,
• proof of your income,
• a recent bank statement, and
• letters from your landlord or Sheriff Officers.

Responding to the summons

When you receive the summons, you will be asked to return a response form to say whether you intend to appear in court and defend the action or make a 'time to pay' application. Your advisor can help you with this. Don't worry if you forget to return the response form as the case will still call in court for a first hearing.

Whatever you do please do not complete the 'time to pay' form attached to the summons. This will seriously weaken your legal position in an eviction case and will result in a court order (decree) for payments by instalment.

You will of course have to repay arrears and meet your ongoing rent. The best advice is to start paying your rent and, as much as you can realistically afford to, arrears until you get independent advice on a repayment plan. At the end of the day it's up to the court to decide whether a repayment plan is reasonable or not.

If the sheriff approves your payment arrangement this will prevent your landlord from obtaining an order for eviction. Once you've cleared the rent arrears you can ask for the case against you to be dismissed.

Mandatory ground for eviction

If your case calls in court and you owe more than three months rent your landlord can ask for a mandatory eviction order - known as 'Ground 8' - and the court may have no option but to grant this. However, if you are over three months in arrears because of a delay or failure in the housing benefit system your solicitor or advisor can use this to defend the case.

Short assured tenancies

If you have a short assured tenancy your landlord may be able to seek a mandatory eviction order. Your landlord can only do this if they have brought your tenancy to an end (by a valid 'notice to quit') and have given prior written notice that they will require the property back once the tenancy has come to an end. If the landlord does this correctly, the court may have no option but to grant an order for eviction. Your solicitor or advisor can check this, as well as checking whether you really do have a short assured tenancy. Sometimes landlords create assured tenancies by error - these give tenants more rights.

What will happen in court?

The law empowers a Sheriff to continue or freeze (sist) an eviction case. In most cases a solicitor or advisor will broker a repayment plan and if the Sheriff thinks this is fair the case will be continued to make sure agreed payments are made. It's important not to miss any payments as this will allow your landlord to ask for an order for eviction.

In a small number of cases the court and the landlord may reject a repayment plan. If this happens it may be necessary for your solicitor or advisor to defend your case by stating a legal defence and asking for an evidential hearing to be fixed at a later date (known as a proof). In this scenario you may have to attend court to give evidence. When a case needs to be defended there are generally two types of defence.

First, it may be possible to defend your case on technical grounds. For example, if your landlord has failed to serve a valid notice to quit prior to bringing the case to court. Your solicitor or advisor can check this. 

It might also be possible to defend your case on the merits. For example, if you dispute the sum of money claimed or if you complained about disrepairs and your landlord took no action then it may be that some of the rent is not lawfully due. Again, you should speak to your solicitor or advisor about this - and he or she can check this.

You might also be able to defend your case on the ground of reasonableness. In some cases the Court must be satisfied whether it is reasonable to grant an order for eviction.

Your landlords lender wants to repossess the property

If your landlord is in mortgage arrears and a bank or lender has obtained a decree against him or her, you might still be able to delay and oppose eviction. Section 152 of the Housing Scotland Act 2010 requires a lender to raise separate legal proceedings against a tenant. A court order against the landlord, as owner of the property, cannot be used to evict a tenant under an assured or short assured tenancy. 

Contacting your landlord

If you do enter into a repayment plan directly with your landlord please remember that the repayment plan will not of itself prevent a court order being granted. It is always safer to get a solicitor or advisor to represent you in court to make sure the case is continued for you to make payments. This will also enable you to get the case dismissed once you've cleared the rent arrears.