5. COURT ACTION AND REPOSSESSION
92. While there is no need to revisit the pre-action requirements after the notice has been served on tenants in all cases, there may be occasions when it is appropriate to do so. Such occasions could include situations where:
- landlords raise court proceedings towards the end of the 6 months in which the notice is in force;
- Housing Benefit staff make a housing benefit determination after landlords have served a notice on tenants;
- tenants have raised concerns about compliance; or
- there has been a significant change in tenants' circumstances.
93. The decision to revisit or to raise proceedings rests with landlords.
94. Landlords must confirm to the court that they have met the pre-action requirements. To do this, landlords must include an averment in the statement of claim section of the court writ to confirm to the court that the pre-action requirements in section 14(2A)(b) of the Housing (Scotland) Act 2001 have been complied with. 6 In practice the landlord's legal representative may complete the averment on the landlord's behalf.
95. The sheriff clerk will check that landlords have included such an averment in the statement of claim before authenticating the summons. The sheriff clerk will reject any summons that does not include an averment in the statement of claim.
96. What evidence landlords submit to court is a decision for them. There is no requirement at this stage for landlords to supply the court with evidence of compliance with the pre-action requirements. Landlords may, however, have to give this evidence during court action (see paragraph 100).
97. Once authenticated, landlords can serve the court summons on tenants. Landlords have raised the court proceedings when they have served the summons on tenants.
98. The pre-action requirements do not replace the requirement on the court to consider whether it is reasonable to make an order for recovery of possession of the property 7 . So, the court will still consider:
- the nature, frequency and duration of the conduct;
- the extent to which that conduct is or was conduct of, or a consequence of acts or omissions of, persons other than the tenant;
- the effect which that conduct has had, is having and is likely to have on any person other than the tenant; and
- any action taken by the landlord, before raising the proceedings, with a view to securing cessation of that conduct.
99. The court may continue the case if it needs more information. The court may also temporarily suspend or "sist" the case where, for example, the landlord is trying to reach an agreement with the tenant. In such circumstances there is no requirement to revisit the pre-action requirements, but the court may seek similar information related to its consideration of the case and the reasonableness of granting an order for repossession.
100. If tenants or their representatives challenge compliance with one or more of the pre-action requirements in court then it is likely that landlords will need to give evidence around compliance to the court.
101. If the court grants an order for possession of the property, section 16(5A) of the 2001 Act now means that, in proceedings where a ground is that tenants have not paid rent lawfully due, the tenancy is not ended on a date appointed when the court grants an order. In such cases, the tenancy ends only when the landlord recovers possession of the property.
102. This means that there is a final opportunity, even after a court has granted an order for possession, for tenants and landlords to agree a way to resolve the arrears and avoid eviction. During this period tenants existing tenancies continue to be in place.
103. This final opportunity to agree a way to resolve the arrears and avoid eviction will help tenants who, because of their circumstances, are unable to take legal advice at an early stage to prevent a court granting a decree.
104. The order granted by the court must specify a period for which landlords have a right to recover possession of the house. The Period Order prescribes a maximum period for the court order of 6 months from the date when the decree is extracted. 8 The period specified in the order may be less than this but may not be more.
105. Where tenants or their representatives lodge an appeal after the court extracts the order for recovery of possession and the court later upholds the order for recovery of possession, the maximum period of 6 months will begin from the date of the interlocutor of the court disposing of the appeal.
106. If landlords evict tenants within the period the court specifies, then the tenancy ends. If landlords do not evict tenants then the order ceases to have effect after the specified period. If rent arrears reoccur then landlords will have to meet the pre-action requirements before raising any future proceedings to repossess the property.