9. Spotlight on Repossession and Eviction
Introduction to repossession and eviction law in Scotland
9.1 Repossession cases involve the retaking of property, usually by a lender, when a borrower is in breach/default of a mortgage or loan secured on their property. Eviction cases involve the repossessing of property by the owner from an occupier who is not the owner, usually a tenant who has accrued rent arrears.
Repossessions and evictions in the context of the courts
9.2 Repossession and eviction cases fall within the jurisdiction of the sheriff courts. Until recently, repossession cases relating to mortgages and loans were dealt with under ordinary cause - ordinary procedure. However, the introduction of the Home Owner and Debtor Protection (Scotland) Act 2010 on 30 September 2010 led to a change in the way that these cases are raised in court and they are now being raised as summary applications. Eviction cases are raised under summary cause procedure.
9.3 It is important to note that the number of repossession/eviction cases disposed of in favour of the pursuer is not the same as the number of repossessions/evictions that actually occur, as some successful repossessions/eviction orders may not ultimately be enforced
9.4 The total number of repossession cases initiated has decreased by one third (33 per cent) between 2008-09 and 2011-12. This reduction has been caused by a combination of factors which are explained in this section. [Table 22].
9.5 The number of ordinary cause - ordinary procedure cases initiated has exhibited a growing downward trend over the four year period. The number of cases has decreased by 99 per cent from 10,135 in 2008-09 to 79 in 2011-12. The likely reason for this is the Home Owner and Debtor Protection (Scotland) Act 2010 which was introduced on 30 September 2010 and stated that all new mortgage/loan repossession cases should be raised under summary application procedure. [Table 22].
9.6 The number of summary application repossession cases initiated has exhibited a growing upward trend over the last four years. The number of cases increased from six in 2008-09 to 6,673 in 2011-12, which was expected given the provisions of the 2010 Act.
9.7 However, the increase in summary application cases initiated during 2010-11 did not directly correspond with the reduction in ordinary cause cases, displaying a lag of one year. This may partly be a result of the UK Supreme Court judgment in the RBS v Wilson case on 24 November 2010 which directed that all active mortgage-related repossession cases be withdrawn from the courts and resubmitted as summary applications following a two month waiting period. This is likely to be the reason for summary application repossession cases exhibiting only a small increase during 2010-11 followed by a greater increase during 2011-12. [Table 22].
Table 22: Repossession and eviction cases initiated and disposed of1 in the sheriff courts, by case type, 2008-09 to 2011-12
|Case type and procedure||2008-09||2009-10||2010-11||2011-12||% change on 2010-11|
1. Figures for initiations and disposals do not necessarily refer to the same cases. See paragraph 11.9 for further details.
9.8 The increase in summary application repossession cases initiated is the reason for the overall number of mortgage/loan-related repossession cases increasing during 2011-12 (29 per cent) for the first time in three years. [Table 22].
9.9 The number of repossession cases disposed of during 2011-12 fell by 24 per cent to 4,243. This reduction was driven by a substantial decrease in the number of repossession cases disposed of under ordinary cause - ordinary procedure (down 95 per cent) despite the number of summary application cases disposed of increasing by 715 per cent to 3,987. [Table 22].
9.10 Evictions accounted for 61 per cent of all summary cause cases initiated in 2011-12. Following a decreasing trend in recent years, the number of eviction cases initiated decreased only slightly (one per cent) during 2011-12 to 13,979. The number of cases disposed of decreased by six per cent to 13,972. Of the cases of this type, 95 per cent were undefended and 47 per cent were awarded in favour of the pursuer. [Table 22].
9.11 The number of eviction cases initiated has fallen by 30 per cent between 2008-09 and 2011-12, which can be partly attributed to a change in the way rent arrears are managed across some local authorities, where it is more likely that methods other than court action may be used to recover the arrears. [Table 22].
Figure 12: Repossession and Eviction cases initiated by procedure type, 2011-12
Differences across sheriffdoms
9.12 The number of repossession and eviction cases initiated varies across sheriffdoms. In 2011-12, Glasgow and Strathkelvin exhibited the highest rate of repossession cases initiated (20 per 10,000 population) and Grampian, Highlands and Islands exhibited the lowest rate (7 cases initiated per 10,000 population). There were 13 repossession cases initiated per 10,000 population for Scotland as a whole. [Figure 13].
Figure 13: Repossession cases initiated per 10,000 population by sheriffdom, 2011-12
9.13 In 2011-12, the greatest rate of eviction cases initiated was in South Strathclyde, Dumfries and Galloway (38 cases per 10,000 population) and the lowest rate was in Grampian, Highlands and Islands (21 cases initiated per 10,000 population).
Figure 14: Eviction cases initiated per 10,000 population by sheriffdom, 2011-12
9.14 In 2011-12, the greatest rate of eviction cases initiated was in South Strathclyde, Dumfries and Galloway (38 cases per 10,000 population) and the lowest rate was in Grampian, Highlands and Islands (21 cases initiated per 10,000 population).
Email: Howard Hooper