Domestic Abuse – Social Housing Tenancy Provisions: Statutory Guidance for Social Landlords

18. Court Action and Effect of the Court Order

18.1 Section 22(3) of the 2021 Act amends the powers of the court in possession hearings at section 16 of the 2001 Act. As with other actions for recovery of possession, the sheriff will have the power to adjourn the proceedings with or without imposing conditions.^[24]

Order for recovery of possession – sole tenant

18.2. Section 22(3)(c) of the 2021 Act inserts new subsections (d) and (e) into section 16(2) of the 2001 Act which require the court to make an order for recovery of possession if it appears to the court that the new ground at paragraph 15A of schedule 2 of the 2001 Act is satisfied, the abusive tenant is the sole tenant, and either:

a) it is reasonable to make the order, or

b) the tenant has in the preceding year been convicted of an offence in respect of the abusive behaviour referred to in the new ground which is punishable by imprisonment (an offence punishable by imprisonment means that the offence carries imprisonment as a possible penalty but does not require that a custodial sentence was imposed as the penalty in the particular case); and

the notice of proceedings was served on the tenant before the first anniversary of either, the date of the conviction, or where that conviction was appealed, the date on which the appeal was dismissed or abandoned.

Order for termination of a tenant’s interest in a tenancy – joint tenant

18.3 Section 22(3)(c) of the 2021 Act inserts new subsection (3ZA) into section 16(2) of the 2001 Act and requires the court to make an order for termination of the abusive tenant’s interest in the tenancy if it appears to the court that the social landlord has satisfied the new ground and either—

a) it is reasonable to make the order; or

b) the tenant has in the preceding year been convicted of an offence in respect of the abusive behaviour referred to in the new ground which is punishable by imprisonment (an offence punishable by imprisonment means that the offence carries imprisonment as a possible penalty but does not require that a custodial sentence was imposed as the penalty in the particular case); and

the notice of proceedings was served on the tenant before the first anniversary of either, the date of the conviction, or where that conviction was appealed, the date on which the appeal was dismissed or abandoned.

18.4 When considering whether it is reasonable to make the order for recovery of possession or termination of a tenant’s interest in a tenancy, the court is required to have regard, in particular, to any risk that the tenant will engage in further behaviour of the kind mentioned in the new ground at paragraph 15A of schedule 2 of the 2001 Act. Social landlords will therefore wish to take account of this requirement when providing evidence of the abusive behaviour to the court.

18.5 However, this is not the only factor that the court can take into account and the legislation is not prescriptive about what other factors may be taken into account when determining whether it is reasonable to make an order. The sheriff will consider all of the circumstances of the case and is bound to act in a way which is compliant with the European Convention on Human Rights and the United Nations Convention on the Rights of the Child.^[25] The court will have to consider whether there are any children who may be affected by the making of an order whose views should be taken into consideration.

18.6 Further information about the streamlined process for recovery of possession or termination of a tenant’s interest in a tenancy at paragraph 18.2(b) and 18.3(b) above is provided at section 19 of this guidance.

Effect of the court order for recovery of possession

18.7 A court order for recovery of possession of the tenancy has the effect of:

(a) terminating the tenancy; and

(b) giving the social landlord the right to recover possession of the house.

Effect of the court order terminating a tenant’s interest in the tenancy

18.8 The effect of an order for termination of an abusive tenant’s interest in the tenancy is that the tenant’s interest in the tenancy ends on the date specified in the order.^[26]

Offering the tenancy to the victim/survivor

18.9 Where an order for recovery of possession is made by the court on the abusive behaviour ground, the social landlord has a duty to offer the tenancy of the house in question to the victim/survivor. The tenancy must be offered to the victim/survivor no later than 28 days after the termination of the abusive person’s tenancy unless it is impossible or inappropriate to do so because of the circumstances relating to the victim/survivor.^[27] For example, if the victim/survivor cannot be located in order to offer the tenancy to them.

18.10 The new tenancy should begin as soon as reasonably practicable. There may however be circumstances where, for example, the abusive tenant was living in the property up until their removal by sheriffs’ officers, and the property requires repairs/essential safety checks before it could be occupied safely by the victim/survivor. In such cases the date of entry should reflect the time required to undertake the work.