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Evictions: Changes (June 2012)

There are some changes afoot, as a result of another part of the of the Bankruptcy and Diligence etc. (Scotland) Act 2007 being implemented, and coming into force on 18 June 2012.

The key points that will be implemented are as follows:

1. Where defender’s address is known, the Sheriff Officer shall service either a) Personally; or b) by the Charge being left in the hands of a resident at the defender’s dwelling place, or an employee at his or her place of business. The latter could be an embarrassing scenario for a defender who is facing eviction.

2. If unable to carry out as above, then after diligent enquiries the Sheriff Officer can serve the Charge a) by depositing it in the defender’s dwelling place or place of business; or b)  by leaving it at that defender’s dwelling place or place of business in such a way that it is likely to come to the attention of the defender.

3. The Charge must then be served by First Class Post to the address the Defender is most likely to be found.

4. If the Defender is no longer in Scotland, then the same procedures for service to parties "Furth" of Scotland applies as in the Ordinary Court Rules.

5. Where the defender’s address is not known, the Sheriff Officer shall leave the Charge with the Sheriff Court within the district of the defender’s last known address, and it will be displayed on the Walls of Court (i.e. Noticeboard within the Court) and the notice period on the Charge will run from the date the Notice is displayed (not necessarily when left by the Sheriff Officer – although it would be hoped that they would be one and the same date). In this case the Sheriff Officer must a)  Affix a copy of the Charge in a sealed envelope addressed to "the occupiers" to the main door of the heritable property or other conspicuous part of the premises. b) In the case of land only, insert stakes in the ground of the occupied land with a copy of the charge in a sealed envelope and addressed to "the occupiers".

The sealed envelope in this case must state clearly on the front: TAKE NOTICE: this envelope contains a copy of a Charge for removing from a Sheriff Officer.

6. There then needs to be served a Notice of Date of Removal, in the prescribed format (Form 4) and that is to be (a) left at the heritable property (i.e. where the Defender is being evicted from); and (b) sent by first class post to the address at which the Sheriff Officer thinks it most likely that the Defender may be found (presumably that could include a work address, or a relatives address).

7. It should be noted that the Charge, and the Notice of Date of Removal, should both be served at the same time, so as not to incur additional charges.

8. The Notice of Date of Removal must give a minimum of 48 hours notice to the Defender of the eviction but if sufficient reasoning can be given to the court the Sheriff has discretion to vary that notice period. Therefore in certain circumstances, at the time Decree is applied for, if there is good reason for reducing the notice period, then we would certainly be seeking the Sheriff use discretion to do so (there would, however, have to be circumstances to support it).

9. The service of the Charge and of the Notice of Date of Removal is proven by a Certificate signed by Sheriff Officer.

10. Any effects (moveable property etc) removed from the property shall be noted in prescribed format of a Form 6, and that inventory should be witnessed.

11. Once the eviction has taken place, the Sheriff Officer will complete a Certificate of Execution in the prescribed format (Form 7) and affix it to the main door of property, or other conspicuous part of the property, in a sealed envelope. In cases of eviction from land only, the Certificate (once again in a sealed envelope) is to be attached to stakes in the ground in conspicuous parts of the land.

Eviction Lawyers, Hamilton, Lanarkshire

If you are a landlord looking for advice on evicting a tennant, TCH Law can assist. To find out how we can do so, call 01698 312 080. You can also complete our online enquiry form.