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Rights of a "Qualifying Occupier" at eviction (Scotland)?

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I am a secure tenant of a social housing landlord in Scotland and have been so for fifteen years, at the same address throughout.

 

 

I am the sole tenant, I do not sub-let or keep lodger(s),

however for the last three plus years I have allowed a friend to stay with me in the property as my "guest" (for want of a more appororiate term),

and it has been their sole and only home throughout that period.

The landlord has been aware of their presence at the address throughout, and has not objected or attempted to have them removed.

 

Following almost three years of a difficult and steadily deteriorating relationship between myself and the landlord,

relating to other matters unrelated to my co-habitee, my landlord has now served a summons for eviction on me.

 

 

I'm disputing it in court on the ground of the landlords unreasonable expectations and demands,

but quite frankly only rather half-heartedly as I realise and accept that even if I win,

our tenant/landlord relationship is untenanble in anything more than the very short term on account of our various difficulties over the last three years.

 

Essentially I'm none to bothered whether I win or lose, as I'm going to have to move on sooner rather than later anyway,

and while I'd rather have a bit more time and wait until circumstances were somewhat better to move on,

if I have to make do with what alternative accomodation I can arrange right now, so be it.

 

My co-habitee's situation is however rather different.

 

 

Having been a resident at the address for three years and known to the landlord as such throughout that period,

I am given to understand they have the status of a "qualifying occupier", and as such have a right under legislation for the Court

to be taken in to consideration upon what the impact would be on them should an eviction of the tenant be granted.

 

 

How I, or my co-habitee goes about making the Court aware of their circumstances and the impact of my eviction on them

as a resident at my address is where my questions lie, as obtaining information on this seems almost impossible to locate.

 

So far we have been led to believe that for their interests to be considered by the Court, they need to apply to be "sisted" to the Summons

- however the flip side of being sisted, or at least one of them, is that they, at the Sheriff's discretion can then be made liable for some/all??

of the sum of money my landlord is seeking in connection with my eviction.

 

Is this the only "down" side (for them) in being "sisted" to the summons, or are there other potential negative issues?

Is it absolutely necessary that they be "sisted" for them to be able to address/inform the Court of how they will be affected by granting my eviction

 

 

- To me anyway, it seems strange that the legislation appears to say that the Court is obliged to consider them anyway,

that they need to be pro-active in making sure the information for the Court to be able to do so is in front of the Court,

and, have to run the risk of being held responsible for a monetary sum,

when in effect they are an innocent and uninvolved party who just happens to going to be losing out whatever happens

, in a dispute between a landlord and tenant.

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Hello there.

 

I've moved your thread to the lettings forum where the guys should be along later with advice for you. There is a link for you to follow from the homelessness forum to this one.

 

Have you spoken to someone like Shelter for advice on this?

 

HB


Illegitimi non carborundum

 

 

 

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Thanks for that, I wasn't sure where was best to post it.

 

Sorry, I should have said in my OP, that my co-habitee has been in touch with the CAB to try and establish what their rights are

and how to go about protecting them, however their line is that they're not in a position to offer legal advice, and recommended they contact Shelter.

 

 

They have done this, and while Shelter were sympathetic, they also took the position that any advice they could give would have to come direct from a lawyer.

They put my co-habitee on a waiting list to receive a phone call consultation with one of their lawyers as soon as one was available,

but after waiting a week, they advised that given their lawyers' current workload and the rate at which they were currently receiving higher priority cases,

it was highly unlikely they were going to be able to have the resources available for even a phone consultation in time to be of help.

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Not something I know anything about CB, googling it throws up some legislation, this is the Scottish Government's Scottish Secure Tenancy facts...

 

http://www.gov.scot/Publications/2002/08/sst/1

 

 

 

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what are the reasons for the eviction?


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Thanks for the link citizenB, essentially where we're at is the contents of item #40:

 

This section enables a qualifying occupier to play a part in possession proceedings, so that their rights as well as the tenant's rights may be considered by the court. When a qualifying occupier(s) applies to the court to be a party to the proceedings, the court must grant the application. This will allow qualifying occupiers, if they so wish, to put their point of view to the court, for example to explain the consequences of the repossession action for themselves. It will be for the sheriff to decide what weight to give to the views of the qualifying occupier(s) in determining whether it is reasonable to grant an order to possess the house.
My co-habitee called the Scottish Court Service to ascertain what, if anything, being made a "party" to the proceedings meant in practical terms for them, in addition to being able to present their point of view to the Court. The SCS advised them that this process was called being "sisted" and to use Form XXX to apply to the Court for it to be done, but beyond that declined to provide any further details of what exactly (if anything) my co-habitee would be committing themselves to should they decide to down this route, citing that they "didn't provide legal advice" as the reason.

 

My co-habitee very much wishes for the Court to take their point of view in to consideration, but not at any cost. Further research has so far unearthed information that would appear to suggest that by being made a party to the proceedings, they are, at the Sheriff's discretion, making themselves potential liable for part/all of any sum(s) deemed payable by the defenders side, and this has just served to make them more concerned and leery of defending their rights, as they're wondering what else they may ultimately become liable for that's not apparent in the readily available information.

 

Hence my question(s), is being made party to the action the only way a qualifying occupier can ensure they are heard in Court, and if so, what liabilities/conditions/terms etc are they committing to, either automatically, or potentially at the discretion of the Sheriff or another by doing so?

 

@ IdaInFife: The eviction action is being raised on the grounds on non-payment of rent, which (as sole tenant) I do not dispute and admit full liability for, I am defending it on the grounds that I believe the landlord has and is acting unreasonably in expecting me to have paid it for the period in question, or to pay it now. As throughout that period and beyond I have had zero income on account of waiting on the DWP to process two seperate applications for benefit. (I have had an ESA claim outstanding since May 23rd 2014, and a PIP claim outstanding since October 5th 2014).

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I do not know Scottish Laws pertaining but in E&W your 'guest' would have no Rights to remain nor address Court. They will be evicted at same time as you. By your own admission rent is owed and Shelter would advise rent is a priority debt and the sole resp of the T. Why did 'guest' not contribute to rent if money was tight?

I sympathise with your long wait for ESA & PIP claims to be paid, but that is not LLs problem. He can reasonably expect rent to paid, when due, by the T.

All I can suggest is to highlight your delayed benefits to DWP/Press and your local MSP, though I suspect a back story for the reason.

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@ mariner51: My "guest" is also my informal carer, I am virtually housebound due to immobility issues, hence my ESA and PIP claim. The arrangement has always been that they stayed with me rent free in lieu of payment for their services, as I was not in a financial position to employ them at a set rate, and it allowed them to be available as and when required.

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I guessed that was the situation but your 'guest' has no right to remain in occupation when you are evicted.

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Have a read from here >> http://scotland.shelter.org.uk/get_advice/advice_topics/eviction/eviction_if_youre_a_disabled_person I am off out for a while and will post a further reply for you..

 

 

Also please have a read of this attachment. This is a case that was heard in the Supreme Court (SC) on the 11/03/2015

it will help if you could read this and post your comments for further advice later

 

 

Thx

Edited by mikeymack2002
Added PDF

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