The Summons also contains the following paperwork:
- Guidance notes;
- Response to Summons;
- Time to Pay Application.
As stated above, in eviction proceedings it is not necessary to return a Response to Summons, and indeed to do so might actually harm the tenant’s case. For example, if the tenant or an advisor simply returns a Response to Summons, admitting the arrears and making a Time to Pay Application, but does not appear at court, then the landlord may object the application and obtain an eviction order in absence. Moreover, even if the tenant or advisor appears at court, nonetheless the act of lodging a Time to Pay Application might subsequently constitute an obtsacle to a Minute for Recall of Decree in the event that such a measure becomes expedient.
This is the first occasion on which the case calls at court. Almost invariably Council landlords and Housing Associations are represented by solicitors or professional arrears officers with considerable experience of such proceedings.
Usually in busy courts the Clerk of Court will undertake a ‘callover’ of cases and deal with non-contentious ones, i.e. those where parties are agreed on how they wish to proceed, or those being ‘continued’ or ‘adjourned’ to another date (these two words mean the same thing, i.e. the case is rescheduled for a later date, usually for something to be done between times).
It is highly desirable for the tenant or agent to speak to the landlord’s solicitor before the case calls, preferably days in advance of the Calling Date itself, but if not then at least before the callover. This way parties can attempt to reach agreement.
In most rent arrears eviction cases the landlord is willing to give the tenant an opportunity to pay off the arrears by setting up a payment arrangement, i.e. payment by instalments. Accordingly, parties may agree to continue the case for a period of time for payments to be made (this is not the same as a formal Time to Pay Application).
If parties cannot reach agreement and the landlord’s solicitor is insiting on an eviction order, then the Clerk will arrange for the case to call before the Sheriff.
In essence, the Sheriff will have two questions to consider:
- Is the ground for eviction established ?
- Is it reasonable to grant an order for eviction ?
In the overwhelming majority of rent arrears eviction cases the tenant admits having arrears, therefore usually Question No.1 answers itself, and the Sheriff proceeds direct to Question No.2:
Is it reasonable to grant an order for eviction ?
The reason why the Sheriff must consider this question is that statute law does only allows him to grant an eviction order in an secured tenancy arrears case if it is also reasonable to do so (section 16 of the Housing (Scotland) Act 2001). And it may not be reasonable to do so, depending on the circumstances, having regard to factors like:
- Level of arrears;
- Duration of arrears;
- Tenant’s loss of employment;
- Poor health;
- Young children in household;
- Benefits problems etc.
The tenant or advisor may state a defence of ‘unreasonable to evict’ under reference to such factors. Often the Sheriff will schedule a ‘proof’. i.e. a formal hearing on evidence, similar in nature to a trial, to take place in a number of weeks time. This gives the tenant an opportunity to prepare the defence more fully, to lodge documents, to cite witnesses, and, crucially, to attempt to reduce the arrears as much as possible.
There are no related links.