- Usually residential tenancies work well. But sometimes they don’t. When they don’t the landlord may end up seeking to remove (in this Note “evict”) the tenant from the property. That involves a number of hoops which must be jumped through; and jumped through in the right order. Some of those hoops are outlined in the Notes on Common Topics: Outline of Recovery of Possession of Private Sector Residential Tenancies. But getting a decree for eviction from the court may well not be an end of the matter. The decree may need to be enforced. This Note is concerned only with the procedures – and costs – of enforcing such a court decree.
- There has been statutory regulation of evictions in Scotland since 1555. A famous legal writer (writing in the early 20th century) described the 1555 Act as being “in order to rid the country of the violence which was a usual accompaniment of the older removing (often of the most wholesale kind) on verbal warning only”. Protections for tenants have, unsurprisingly, developed considerably since 1555 through a whole succession of statutory provisions. The focus of this Note is one of the most recent being the Act of Sederunt (Actions for removing from heritable property) 2012. The Act came into force on 18th June 2012.
The Act of Sederunt (Actions for removing from heritable property) 2012 (“the Act”)
- The Act is hardly revolutionary but it does have practical – and cost – implications for landlords. One of its aims is to achieve consistency as to the procedures for a wide range of different forms of decree for ejection or removing: of which a decree for eviction from a private sector residential tenancy is but one form. The other main aim is to ensure that a tenant will be given more notice that they have to leave the premises they are living in.
- There is set out below the various procedures which the Act requires with a few particular comments on each. There then follows an indicative illustration of some of the relative costs, and a brief word about the possibility of recovering those costs from the tenant.
(1) Serving formal “charge for removing” or eviction
- Once the court has issued the formal hard copy “decree” for eviction (which will generally be issued 2 – 4 weeks after the court has granted the order) this will be passed to “sheriff officers” for enforcement. The sheriff officers must then serve formal notice on the tenant (called a “charge for removing”). This must (generally) give the tenant a minimum of 14 days notice of eviction. Rather pompously the “charge for removing” will state that the tenant must remove together with all “effects, possessions and belongings”.
- The question of the tenant’s “effects, possessions and belongings” is potentially problematic. The court, when granting decree for eviction, may also include in that decree directions about preserving the tenant’s “effects, possessions and belongings” which are removed. If the sheriff does so then the “charge for removing” served on the tenant will also say:
“The sheriff has directed that any of your effects left in the property be preserved by sheriff officers. You [i.e. the tenant] will be liable for any costs incurred in the preservation of these effects.”
- Something more is said about that below.
(2) Giving notice of actual date of eviction
- Once the notice period in the “charge” for eviction has expired an eviction may take place but (generally) at least 48 hours written notice of this, in a prescribed form, must be given by the sheriff officers stating in particular that “you [the tenant] must vacate the property on or before” the date specified.
(3) Inventory of any of the tenant’s belongings removed
- As already noted, it is not only the tenant that must remove: as the “charge for removing” states all the tenant’s belongings must also be removed. If the tenant has left belongings behind the sheriff officer must make an Inventory of any such items as are removed.
- And, again as mentioned above, when the sheriff grants decree for the eviction to take place, the sheriff may also include in that decree directions about preserving the tenant’s belongings which are removed. If such directions are imposed then steps for “preservation” of such belongings must be made. Even assuming the court provides that the tenant is to be liable for the costs of preserving his belongings making the tenant pay for the costs of so doing will be problematic.
- On this aspect of the matter a landlord will want to resist any attempt to make the court order the landlord to preserve the tenant’s belongings. If there is no such order then there will be no requirement on the landlord to preserve them. A prudent tenant on the other hand should take all his belongings with him.
(4) Execution of decree
- Once the eviction is completed the sheriff officer must complete a certificate, in a prescribed form, (known as a “certificate of execution”) confirming that.
(5) Changing the locks
- In most cases the locks of the property will have to be changed. The sheriff officers can arrange this and the costs of their doing so will be included in their account.
(6) Indicative illustration of the sheriff officer’s costs
- Sheriff Officer’s fees are prescribed by statutory regulation. When submitting an invoice it must be itemised so that it can be confirmed that any fees charged are in accordance with the scale of fees. The relevant regulations are detailed and the costs of any eviction will depend on the precise circumstances of the particular case. As an illustration however, in a straightforward case where there is one individual tenant and no court requirements imposed in relation to the preservation of the tenant’s belongings, the sheriff officer’s costs may be of the order of £400. This would include the cost of changing the locks mentioned above.
- These indicative fees cover the costs only of the sheriff officers. If a solicitor or letting agent is involved in managing the eviction this would add further costs.
(7) Possibility of recovery of costs from the tenant
- The original court decree allowing for eviction of the tenant will not provide that the actual costs of eviction are to be met by the tenant. Of course, once the landlord has incurred those costs, the landlord may go back to court and get a further decree ordering the tenant to pay the costs. But, in turn, that decree will have to be enforced. It is unlikely that the tenant will have left a forwarding address. So, in practice, the chances of a landlord recovering his costs of eviction are remote.
Note: This material is for information purposes only and does not constitute any form of advice or recommendation by us. You should not rely upon it in making any decisions or taking or refraining from taking any action. If you would like us to advise you on any of the matters covered in this material, please contact Paul Neilly: firstname.lastname@example.org