The Scottish Secure Tenancies (Proceedings for Possession) (Form of Notice) Regulations 2012

Scottish Statutory Instruments

2012 No. 92

Housing

The Scottish Secure Tenancies (Proceedings for Possession) (Form of Notice) Regulations 2012

Made

14th March 2012

Laid before the Scottish Parliament

16th March 2012

Coming into force

1st August 2012

The Scottish Ministers make the following Regulations in exercise of the powers conferred by sections 14(4) and 109(2) of the Housing (Scotland) Act 2001(1) and all other powers enabling them to do so.

Citation, commencement, interpretation and revocation S

1.—(1) These Regulations may be cited as the Scottish Secure Tenancies (Proceedings for Possession) (Form of Notice) Regulations 2012 and come into force on 1st August 2012.

(2) In these Regulations “the Act” means the Housing (Scotland) Act 2001.

(3) The Scottish Secure Tenancies (Proceedings for Possession) Regulations 2002(2) are hereby revoked.

Commencement Information

I1 Reg. 1 in force at 1.8.2012, see reg. 1(1)

Saving provision S

2.  Nothing in these Regulations affects the validity of a notice served under section 14(2)(a) of the Act (proceedings for possession) before 1st August 2012.

Commencement Information

I2 Reg. 2 in force at 1.8.2012, see reg. 1(1)

Form of notice S

3.—(1) Subject to paragraph (2), the prescribed form of notice for the purposes of section 14(4) of the Act (form of notice) is contained in Schedule 1.

(2) Where section 14(2A) of the Act (unpaid rent)(3) applies, the prescribed form of notice for the purposes of section 14(4) of the Act is contained in Schedule 2.

Commencement Information

I3 Reg. 3 in force at 1.8.2012, see reg. 1(1)

KEITH BROWN

Authorised to sign by the Scottish Ministers

St Andrew’s House,

Edinburgh

14th March 2012

Regulation 3(1)

F1 SCHEDULE 1 S NOTICE OF PROCEEDINGS FOR RECOVERY OF POSSESSION (IN CASES WHERE GROUNDS DO NOT INCLUDE RENT ARREARS)

Textual Amendments

F1 Sch. 1, Guidance Notes: By The Scottish Secure Tenancies (Proceedings for Possession) (Form of Notice) Amendment Regulations 2018 (S.S.I. 2018/156), regs. 1, 3, it is provided that the following words are substituted (1.5.2019) for the entry headed “[Text for all notices on grounds 1 to 7”:

“[Text for all notices on ground 2:

If this notice is served on you before the day which is 12 months after—

• the day on which the person was convicted of the offence forming the ground for recovery of possession; or

• where that conviction was appealed, the day on which the appeal is dismissed or abandoned,

and the landlord does take court action for possession then the sheriff will be concerned whether the facts of the case are correct and whether you have any other rights. If satisfied, the sheriff must grant a possession order.

If this notice is served on you on or after that day, then the sheriff will not only be concerned whether the facts of the case are correct but also whether it is reasonable that you should be evicted. In deciding whether it is reasonable, the sheriff must take into account all the circumstances of the case. The sheriff must also take into account all the specific criteria set out in section 16 of the Housing (Scotland) Act 2001, which are broadly as follows:

• the nature, frequency and duration of the conduct for which the tenant, a person residing or lodging with them or a subtenant has been convicted;

• how far the tenant was personally responsible for the conduct leading to the eviction proceedings or whether it was the consequence of acts or omissions by others;

• the effect of the conduct on others, for example whether there are serious adverse consequences for other local residents; and

• whether the landlord has considered and, if appropriate, tried other courses of action to stop the conduct before opting for eviction.

The sheriff may decide not to grant a possession order, or may delay the decision or impose conditions which must be complied with. If a possession order is granted, the landlord will be able to evict you. If the landlord evicts you, it will not be under any obligation to re-house you. You should not assume that you will be entitled to be re-housed by the landlord or a local authority.]*

[Text for all notices on grounds 1 and 3 to 7:

If the landlord does take court action for possession, the sheriff will be concerned with whether the facts of the case are correct and if so, whether it is reasonable that you should be evicted. In deciding whether it is reasonable, the sheriff must take into account all the circumstances of the case. The sheriff must also take into account all the specific criteria set out in section 16 of the Housing (Scotland) Act 2001, which are broadly as follows:

• the nature, frequency and duration of the conduct leading to the eviction proceedings;

• how far the tenant was personally responsible for the conduct leading to the eviction proceedings or whether it was the consequence of acts or omissions by others;

• the effect of the conduct on others, for example whether there are serious adverse consequences for other local residents; and

• whether the landlord has considered and, if appropriate, tried other courses of action to stop the conduct before opting for eviction.

The sheriff may decide not to grant a possession order, or may delay the decision or impose conditions which must be complied with. If a possession order is granted, the landlord will be able to evict you. If the landlord evicts you, it will not be under any obligation to re-house you. You should not assume that you will be entitled to be re-housed by the landlord or a local authority.]*”

Commencement Information

I4 Sch. 1 in force at 1.8.2012, see reg. 1(1)

Regulation 3(2)

F2 SCHEDULE 2 S NOTICE OF PROCEEDINGS FOR RECOVERY OF POSSESSION (IN CASES WHERE GROUNDS INCLUDE RENT ARREARS)

Textual Amendments

F2 Sch. 2, Guidance Notes: By The Scottish Secure Tenancies (Proceedings for Possession) (Form of Notice) Amendment Regulations 2018 (S.S.I. 2018/156), regs. 1, 4, it is provided that, after the entry headed “[Text for notice to a qualifying occupier” the following words are substituted (1.5.2019) for the words from “If the landlord does take court action for possession” to the end:

“[Text for all notices other than on ground 2:

If the landlord does take court action for possession, the sheriff will be concerned with whether the facts of the case are correct and if so, whether it is reasonable that you should be evicted. In deciding whether it is reasonable, the sheriff must take into account all the circumstances of the case. The sheriff must also take into account all the specific criteria set out in section 16 of the Housing (Scotland) Act 2001 which are broadly as follows:

• the nature, frequency and duration of the conduct leading to the eviction proceedings;

• how far the tenant was personally responsible for the conduct leading to the eviction proceedings or whether it was the consequence of acts or omissions by others;

• the effect of the conduct on others, for example whether there are serious adverse consequences for other local residents; and

• whether the landlord has considered and, if appropriate, tried other courses of action to stop the conduct before opting for eviction.

The sheriff may decide not to grant a possession order, or may delay the decision or impose conditions which must be complied with. If a possession order is granted, the landlord will be able to evict you. If the landlord evicts you, it will not be under any obligation to re-house you. You should not assume that you will be entitled to be re-housed by the landlord or a local authority.]*

[Text for all notices including ground 2:

If this notice is served on you before the day which is 12 months after-

• the day on which the person was convicted of the offence forming the ground for recovery of possession; or

• where that conviction was appealed, the day on which the appeal is dismissed or abandoned,

and the landlord does take court action for possession then the sheriff will be concerned whether the facts of the case are correct and whether you have any other rights. If satisfied, the sheriff must grant a possession order.

If this notice is served on you on or after that day then the sheriff will not only be concerned whether the facts of the case are correct but also whether it is reasonable that you should be evicted. In deciding whether it is reasonable, the sheriff must take into account all the circumstances of the case. The sheriff must also take into account all the specific criteria set out in section 16 of the Housing (Scotland) Act 2001 which are broadly as follows:

• the nature, frequency and duration of the conduct for which the tenant, a person residing or lodging with them or a subtenant has been convicted;

• how far the tenant was personally responsible for the conduct leading to the eviction proceedings or whether it was the consequence of acts or omissions by others;

• the effect of the conduct on others, for example whether there are serious adverse consequences for other local residents; and

• whether the landlord has considered and, if appropriate, tried other courses of action to stop the conduct before opting for eviction.

The sheriff may decide not to grant a possession order, or may delay the decision or impose conditions which must be complied with. If a possession order is granted, the landlord will be able to evict you. If the landlord evicts you, it will not be under any obligation to re-house you. You should not assume that you will be entitled to be re-housed by the landlord or a local authority.]*;

*Delete where not applicable”

Commencement Information

I5 Sch. 2 in force at 1.8.2012, see reg. 1(1)

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations prescribe the form of notice to be used by a landlord when notifying its tenant and any qualifying occupier under a Scottish secure tenancy, within the meaning of Part 2 of the Housing (Scotland) Act 2001 (“the Act”), that the landlord may raise possession proceedings in respect of the house which is the subject of the Scottish secure tenancy.

A notice in the prescribed form must be served by a landlord on a tenant and any qualifying occupier, in terms of section 14(2) of the Act.

Regulation 3 provides that the prescribed form of notice is contained in Schedule 1 to the Regulations, except for cases where proceedings are to include the ground that rent lawfully due from the tenant has not been paid (as set out in paragraph 1 of schedule 2 to the Act). In those cases, the prescribed form of notice is contained in Schedule 2 to the Regulations.

Both notices set out the time limits within which the landlord is permitted to raise possession proceedings and the grounds on which the landlord is seeking possession. The notice in Schedule 2 also sets out the steps taken by the landlord which the landlord considers to constitute compliance with the pre-action requirements in section 14A of the Act.

Regulation 1 revokes the Scottish Secure Tenancies (Proceedings for Possession) Regulations 2002 (S.S.I. 2002/320). Regulation 2 makes a saving for notices served prior to the present Regulations coming into force.

(1)

2001 asp 10; section 14(4) was amended by the Housing (Scotland) Act 2010 (asp 17), section 155(a)(ii) and (iii).

(2)

S.S.I. 2002/320.

(3)

Section 14(2A) was inserted by the Housing (Scotland) Act 2010, section 155(a)(i).