Debt Advice Handbook Scotland - 1st editionChapter 8: Housing debt1. Social housing sector Post-court action
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Post-court action
When the court grants a decree for possession of the property due to rent arrears, the tenancy is not ended on the date the court granted the decree. It ends when the landlord recovers possession of the property.
Minute for recall
A decree can be recalled through an application for a ‘minute for recall’. This can only be applied for if a decree was granted and neither the client nor anyone representing the client appeared in court.1Sch 1 r24.1 Summary Cause Rules
For summary cause procedures, Forms 30 and 30a must be completed.
Recall can take place any time before the sheriff’s decision has been fully implemented, even up to the date an eviction was planned.2Sch 1 Ch 24.1(9) Summary Cause Rules
A client, qualifying occupier or landlord can recall a decree. A ‘qualifying occupier’ is someone who uses the property as their home and who is:3s14 H(S)A 2001
    •a member of the tenant’s family aged over 16;
    •assigned part of the property or subletting part of the property with the landlord’s consent;
    •lodging with the tenant with the landlord’s consent.
 
1     Sch 1 r24.1 Summary Cause Rules »
2     Sch 1 Ch 24.1(9) Summary Cause Rules »
3     s14 H(S)A 2001 »
When a decree can be recalled
If the decree includes a decree for eviction, a minute for recall can be applied for at any time up to the point of eviction.1r16 Act of Sederunt (Sheriff Court Rules) (Miscellaneous Amendments) 2011
If the decree relates only to money, an application for a minute of recall can be applied for up to 14 days after the execution of a charge of payment or execution of an arrestment, depending on which took place first.
If the decree is for both eviction and money, each part can be recalled separately. The part of the decree relating to money should be recalled within 14 days of the execution of a charge or of an arrestment, whichever occurs first. The part relating to eviction can be recalled up to the point of eviction. Complicated recalls should be referred to a solicitor specialising in housing law.
 
1     r16 Act of Sederunt (Sheriff Court Rules) (Miscellaneous Amendments) 2011 »
Appeal
If the client wants to appeal, they should be signposted or referred to a legal professional.
An appeal can be made if the landlord or client disagrees with the sheriff’s decision. The person making the appeal is called the ’appellant’ and the other party is the ’respondent’.
The applicant must lodge a note of appeal with the sheriff clerk within 14 days of the final decision made by the sheriff.1Sch 1 r25.1 Summary Cause Rules The appeal sets out the points of law on which the appeal is made. A fee must be paid to make the appeal.
A ’draft’ is issued within 28 days of the appeal being made. The draft details the facts the sheriff has found proved in the case, the legal findings and legal questions which will be considered at the appeal hearing.2Sch 1 Ch 25 Summary Cause Rules
 
1     Sch 1 r25.1 Summary Cause Rules »
2     Sch 1 Ch 25 Summary Cause Rules »
Charge for removal
The landlord notifies the tenant of their eviction date by sending a ’Form of Charge for Removing’. This is served by a sheriff officer. An example of a charge for removal is in the Schedule to The Removing from Heritable Property (Form of Charge) (Scotland) Regulations 2011.1legislation.gov.uk/ssi/2011/158/made
The client is usually given 14 days to leave the property. If the tenant does not leave by the eviction date, sheriff officers write to the tenant to inform them when the eviction will be enforced. The tenant must have at least 48 hours’ notice.2Art 4 Act of Sederunt (Actions for removing from heritable property) 2012
 
1     legislation.gov.uk/ssi/2011/158/made »
2     Art 4 Act of Sederunt (Actions for removing from heritable property) 2012 »
3     scotland.shelter.org.uk/professional_resources/legal/security_of_tenure/eviction/post_decree_eviction »