Due to a recent change in the law, when you wish to enforce a decree for recovery of possession of property, Sheriff Officers now require to be instructed to serve a Charge for Removing upon the tenant notifying them that they have 14 days to vacate the property. This replaces the previous practice of serving on the tenant a 48 hour Charge or Notice of Eviction confirming the date that the eviction would take place.
What then happens if the tenant fails to remove after the 14 days? Best practice dictates service of a further Notice upon the tenant specifying the date of eviction. The Notice may be served along with the Charge (if a decision has been made to evict) or alternatively after expiry of the Charge if only then you decide to evict. Service of the Charge may operate in certain circumstances as an ultimatum to the tenant. We anticipate that a statutory requirement to specify a date for the eviction will be introduced later in the year.
It is possible to request the Sheriff to shorten or to dispense with the notice period of the Charge for Removing on “cause shown”, which we interpret as being most applicable to the unauthorised occupation of a property by a person or cases involving anti-social behaviour or perhaps even extremely high arrears. We suggest the time to make this request is at the first (or any continued) calling of the case.
The new requirement to serve a Charge for Removing will only apply to decrees granted on or after 4 April 2011. Also, from that date forward a Minute for Recall of Decree can be lodged by the tenant at any time before he or she is evicted.
These changes will no doubt affect your internal procedures for your dealings with a tenant against whom a decree for recovery of possession has been obtained. We would be pleased to discuss these changes with you and to assist in the review of these procedures.
There will be some further changes to the law concerning residential tenancies in both the private and public sectors later in the year, including the introduction of a pre-action protocol. We suspect the new pre-action protocol will simply codify in a statutory context the steps you already take internally with a tenant prior to instructing proceedings. Further advice will be forthcoming once the Scottish Parliament has finalised the new provisions.
If you wish to discuss this current change in the law or any other matters involving residential property please contact:
Grant Hunter or David Young.