Citation, commencement, interpretation and revocation

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.

Saving provision

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.

Form of notice

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.

Regulation 3(1)

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

This notice is a warning that the landlord may raise proceedings in the sheriff court to gain possession of the house you live in. It is not a notice to quit and it does not affect your right to continue living in the house or obligations to pay rent. You cannot be evicted from your house unless the sheriff grants a possession order.

These Notes are intended for guidance only. If you are at all uncertain about what this notice means or if you are unsure of your rights you should get advice as quickly as possible. You may be able to get this from your landlord, from your local Housing Advice Centre (which is independent of your landlord), a Citizens Advice Bureau, or from a solicitor. If you need to employ a solicitor, legal aid may be available depending on your income.

The date given in the notice is the earliest date on which the landlord can start court action for possession. After that date the landlord is allowed to start court action at any time during the following 6 months. If the landlord does not start court action in that 6 month period they would have to serve another one of these notices on you before they could start court action.

The law sets out the grounds on which the sheriff may order recovery of possession of your house. The landlord has explained in the notice the reason or reasons why they are considering taking court action and which paragraph(s) of Part 1 of schedule 2 to the Housing (Scotland) Act 2001 applies/apply.

[Text for all notices to a tenant:

Your landlord will serve a notice on any qualifying occupiers who live with you. A qualifying occupier is a person who is 16 years old or more and occupies your house as their only or main home. This can be a lodger or someone you have assigned, sublet or given up the house or part of it to, with the landlord's consent. The qualifying occupier can be party to any court action for possession by applying to the sheriff court. This allows the sheriff to consider a qualifying occupier's rights and the consequences of repossession for them.]*

[Text for all notices to a qualifying occupier:

As a qualifying occupier, you have the right to play a part in any court action arising from this notice. You are entitled to have your rights considered and you or your representative will be able to put your point of view to the sheriff, for example, to explain the consequences of the repossession action for you.]*

[Text for all notices on grounds 1 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 the specific criteria set out in section 16 of the Housing (Scotland) Act 2001, which are broadly as follows:

• [Text for grounds 1 and 3 to 7: the nature, frequency and duration of the conduct leading to the eviction proceedings;]*

• [Text for ground 2: the nature, frequency and duration of the conduct for which the tenant, a person residing or lodging with them or a subtenant was 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 grounds 8 to 14 where the notice is to a tenant:

If the landlord does take court action for possession, the sheriff will be concerned with whether the facts of the case are correct. If the sheriff decides that the facts are correct, the sheriff must grant a possession order, provided the landlord can show that they have arranged for suitable alternative accommodation to be made available to you. In considering whether the alternative accommodation offered to you is suitable the sheriff has to take account of the following points:

• the proximity of the accommodation to the place of work (including school or college) of you or your family, compared with your existing house;

• the extent of the accommodation required by you and your family;

• the character of the accommodation offered compared with your existing house;

• the terms on which the accommodation is offered compared with the terms of your existing tenancy;

* Delete where not applicable

• if any furniture was provided by the landlord under the existing tenancy, whether furniture is to be provided under the new tenancy which is comparable in relation to your need and the needs of your family; and

• any special needs of yourself or your family.

The landlord must make you an offer of alternative accommodation in writing, and must give you at least 14 days to make up your mind about the offer. Until the landlord has done this the sheriff will not grant a possession order. Once it has been done, the sheriff will grant a possession order unless you tell the sheriff that you do not consider the offer suitable and explain why. Once a possession order has been granted, the landlord will be able to evict you.]*

[Additional text for ground 10 where the tenancy will not be terminated under section 16(6) of the Housing (Scotland) Act 2001 and where the notice is to a tenant:

The landlord only wants to move you out of your house temporarily while works are carried out. The sheriff will make an order which will entitle you to return to your house once these works are completed. This will not affect your right to suitable alternative accommodation but your existing tenancy will not be terminated and you will have no right to stay in the alternative accommodation once your landlord confirms that the house which you live in is ready to be occupied again.]*

[Text for grounds 8 to 14 where the notice is to a qualifying occupier:

If the landlord does take court action for possession, the sheriff will be concerned with whether the facts of the case are correct. If the sheriff decides that the facts are correct, the sheriff must grant a possession order, provided the landlord can show that they have arranged for suitable alternative accommodation to be made available to the tenant and the tenant's family. You should speak to the landlord or seek independent advice on how this might affect you as a qualifying occupier. If you become a party to the eviction action, you or your representative will be able to put your point of view to the sheriff.]*

[Additional text for ground 10 where the tenancy will not be terminated under section 16(6) of the Housing (Scotland) Act 2001 and where the notice is to a qualifying occupier:

The landlord wants to move the tenant and qualifying occupiers out of the house, and into suitable alternative accommodation, temporarily while works are carried out. The tenant's existing tenancy will not be terminated and the sheriff will make an order which will entitle the tenant to return to the house once the landlord confirms that the house is ready to be occupied again.]*

[Text for ground 15 where the notice is to a tenant:

The landlord wants to transfer the house to your husband, wife or civil partner (or ex-husband, ex-wife or former civil partner) or to a cohabitee, because one of you no longer wishes to live with the other. The sheriff must be satisfied that the facts of the case are correct, that it is reasonable to grant the order and that the landlord will offer you a suitable alternative house.]*

[Text for ground 15 where the notice is to a qualifying occupier:

The landlord wants to transfer the house to the tenant's husband, wife or civil partner (or ex-husband, ex-wife or former civil partner), or to a cohabitee, because one of them no longer wishes to live with the other. The sheriff must be satisfied that the facts of the case are correct, that it is reasonable to grant the order and that the landlord will offer the tenant a suitable alternative house. You should speak to the landlord or seek independent advice on how this might affect you as a qualifying occupier.]*

* Delete where not applicable

Regulation 3(2)

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

This notice is a warning that the landlord may raise proceedings in the sheriff court to gain possession of the house you live in. It is not a notice to quit and it does not affect your right to continue living in the house or obligations to pay rent. You cannot be evicted from your house unless the sheriff grants a possession order.

These Notes are intended for guidance only. If you are at all uncertain about what this notice means or if you are unsure of your rights you should get advice as quickly as possible. You may be able to get this from the landlord, from your local Housing Advice Centre (which is independent of the landlord), a Citizens Advice Bureau, or from a solicitor. If you need to employ a solicitor, legal aid may be available depending on your income.

The date given in the notice is the earliest date on which the landlord can start court action for possession. After that date the landlord is allowed to start court action at any time during the following 6 months. If the landlord does not start court action in that 6 month period they would have to serve another one of these notices on you before they could start court action.

The law sets out the grounds on which the sheriff may order recovery of possession of your house. The landlord has explained in the notice the reason or reasons why they are considering taking court action and which paragraph(s) of Part 1 of schedule 2 to the Housing (Scotland) Act 2001 applies/apply.

The reason(s) given for seeking possession include(s) rent arrears. When seeking possession for this reason the landlord must have completed a number of steps called Pre-Action Requirements before issuing you with this notice. The landlord has explained above the steps they have taken to meet these Pre-Action Requirements.

[Text for notice to a tenant:

Your landlord will serve a notice on any qualifying occupiers who live with you. A qualifying occupier is a person who is 16 years old or more and occupies your house as their only or main home. This can be a lodger or someone you have assigned, sublet or given up the house or part of it to, with the landlord's consent. The qualifying occupier can be party to any court action by applying to the sheriff court. This allows the sheriff to consider a qualifying occupier's rights and the consequences of repossession for them.]*

[Text for notice to a qualifying occupier:

As a qualifying occupier, you have the right to play a part in any court action arising from this notice. You are entitled to have your rights considered and you or your representative will be able to put your point of view to the sheriff, for example, to explain the consequences of the repossession action for you.]*

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 the specific criteria set out in section 16 of the Housing (Scotland) Act 2001, which are broadly as follows:

* Delete where not applicable

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

• [Text for ground 2: the nature, frequency and duration of the conduct for which the tenant, a person residing or lodging with them or a subtenant was 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 does evict 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

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.