Housing (Scotland) Act 2001

16 [F1Powers of court in proceedings for recovery of possession or termination of joint tenant's interest]S
This section has no associated Explanatory Notes

(1)The court may, as it thinks fit, adjourn proceedings under section 14 on a ground set out in any of paragraphs 1 to [F27, 15 and 15A] of schedule 2 for a period or periods, with or without imposing conditions as to payment of outstanding rent or otherwise.

(2)Subject to subsection (1), in proceedings under section [F314(1)(a)] the court must make an order for recovery of possession if it appears to the court—

(a)that—

(i)the landlord has a ground for recovery of possession set out in any of paragraphs 1 to 7 of that schedule and specified in the notice required by section 14, and

(ii)it is reasonable to make the order,

[F4(aa)whether or not paragraph (a) applies, that—

(i)the landlord has a ground for recovery of possession set out in paragraph 2 of that schedule and so specified, and

(ii)the landlord served the notice under section 14(2) before the day which is 12 months after—

(A)the day on which the person was convicted of the offence forming the ground for recovery of possession, or

(B)where that conviction was appealed, the day on which the appeal is dismissed or abandoned,]

(b)that—

(i)the landlord has a ground for recovery of possession set out in any of paragraphs 8 to 14 of that schedule and so specified, and

(ii)other suitable accommodation will be available for the tenant when the order takes effect, or

(c)that—

(i)the landlord has a ground for recovery of possession set out in paragraph 15 of that schedule and so specified,

(ii)it is reasonable to make the order, and

(iii)other suitable accommodation will be available for the tenant when the order takes effect,

[F5(d)that—

(i)the landlord has a ground for recovery of possession set out in paragraph 15A of that schedule and so specified,

(ii)the tenant is the sole tenant, and

(iii)it is reasonable to make the order,

(e)whether or not paragraph (d) applies, that—

(i)the landlord has a ground for recovery of possession set out in paragraph 15A of that schedule and so specified,

(ii)the tenant is the sole tenant,

(iii)the tenant has been convicted of an offence—

(A)in respect of the abusive behaviour referred to in sub-paragraph (1) of that paragraph, and

(B)which is punishable by imprisonment, and

(iv)the landlord served the notice under section 14(2) before the day which is 12 months after—

(A)the day on which the tenant was convicted of the offence, or

(B)where that conviction was appealed, the day on which the appeal was dismissed or abandoned.]

(3)For the purposes of subsection (2)(a)(ii) the court is to have regard, in particular, to—

(a)the nature, frequency and duration of—

(i)where the ground for recovery of possession is one set out in any of paragraphs 1 and 3 to 7 of schedule 2, the conduct taken into account by the court in concluding that the ground is established,

(ii)where the ground for recovery of possession is that set out in paragraph 2 of that schedule, the conduct in respect of which the person in question was convicted,

(b)the extent to which that conduct is or was conduct of, or a consequence of acts or omissions of, persons other than the tenant,

(c)the effect which that conduct has had, is having and is likely to have on any person other than the tenant, and

(d)any action taken by the landlord, before raising the proceedings, with a view to securing the cessation of that conduct.

[F6(3ZA)Subject to subsection (1), in proceedings under section 14(1)(b) the court must make an order for termination of the tenant's interest in the tenancy if it appears to the court—

(a)that—

(i)the landlord has a ground for termination of the tenant's interest in the tenancy set out in paragraph 15A of that schedule and specified in the notice required by section 14, and

(ii)it is reasonable to make the order,

(b)whether or not paragraph (a) applies, that—

(i)the landlord has a ground for termination of the tenant's interest in the tenancy set out in paragraph 15A of that schedule and so specified,

(ii)the tenant has been convicted of an offence—

(A)in respect of the abusive behaviour referred to in sub-paragraph (1) of that paragraph, and

(B)which is punishable by imprisonment, and

(iii)the landlord served the notice under section 14(2) before the day which is 12 months after—

(A)the day on which the tenant was convicted of the offence, or

(B)where that conviction was appealed, the day on which the appeal was dismissed or abandoned.

(3ZB)For the purposes of subsections (2)(d)(iii) and (3ZA)(a)(ii), the court is to have regard, in particular, to any risk that the tenant will engage in further behaviour of the kind mentioned in paragraph 15A of schedule 2.]

[F7(3A)[F8Subsections (2) and (3ZA) do] not affect any other rights that the tenant may have by virtue of any other enactment or rule of law.]

(4)Part 2 of schedule 2 has effect to determine whether accommodation is suitable for the purposes of subsection (2)(b) or (c).

(5)An order under subsection (2) must appoint a date for recovery of possession and has the effect of—

(a)terminating the tenancy, and

(b)giving the landlord the right to recover possession of the house,

at that date.

[F9(5A)Where an order is made under subsection (2) in proceedings under section 14 on the ground that rent lawfully due from the tenant has not been paid (as set out in paragraph 1 of schedule 2) or on grounds including that ground—

(a)subsection (5)(a) does not apply,

(b)the tenancy is terminated only if the landlord recovers possession of the house in pursuance of the order,

(c)the order must specify the period for which the landlord's right to recover possession of the house is to have effect (being no longer than any maximum period which the Scottish Ministers by order prescribe), and

(d)the landlord must have regard to any guidance issued by the Scottish Ministers about recovery of possession in pursuance of the order.

(5B)Before making an order under subsection (5A)(c) or issuing guidance under subsection (5A)(d), the Scottish Ministers must consult—

(a)such bodies representing local authorities,

(b)such registered social landlords or bodies representing them,

(c)such bodies representing tenants' interests, and

(d)such other persons,

as they think fit.]

[F10(5C)An order under subsection (3ZA) has the effect of bringing to an end the tenant's interest in the tenancy on the date specified in the order.]

(6)Where, in proceedings under section 14 on the ground set out in paragraph 10 of schedule 2, it appears to the court that the landlord intends that—

(a)substantial work will be carried out on the building (or a part of the building) which comprises or includes the house, and

(b)the tenant should return to the house after the work is completed,

the court must make an order that the tenant is entitled to return to the house after the work is completed; and subsection (5)(a) does not apply in such a case.

[F11(7)The landlord must, no later than 28 days after the date of termination of a tenancy which is terminated on the ground set out in paragraph 15A of schedule 2 (or on grounds including that ground), offer a tenancy of the house (beginning as soon as reasonably practicable) to person P.

(8)But the landlord need not comply with the duty imposed by subsection (7) if it is impossible or inappropriate to do so because of circumstances relating to person P.

(9)The landlord must have regard to any guidance issued by the Scottish Ministers about subsections (7) and (8). 

(10)The references in subsections (7) and (8) to person P are to the person who, in relation to the house, is person P within the meaning of paragraph 15A of schedule 2.]

Textual Amendments

F9S. 16(5A)(5B) inserted (20.3.2011 for specified purposes, 22.2.2012 for specified purposes, 1.8.2012 in so far as not already in force) by Housing (Scotland) Act 2010 (asp 17), ss. 153(a), 166(2); S.S.I. 2011/181, art. 2; S.S.I. 2012/19, art. 2(a); S.I. 2012/91, art. 2(a) (with art. 3)

Commencement Information

I1S. 16 wholly in force at 30.9.2002, see s. 113(1)(2) and S.S.I. 2002/321, art. 2 (subject to transitional provisions and savings in arts. 3-5)