Home Owners: Helping you to keep your home and where to get advice

You have the right to oppose court proceedings for the repossession of your home. The Homeowner and Debtor Protection (Scotland) Act 2010 ("The Act") entitles you to ask the Sheriff for time to clear arrears and pay your monthly mortgage, or for time to put other solutions in place.

Who can apply?

An "entitled resident" can apply, that includes an owner or their spouse or cohabitee. They can ask the court to stop the legal action. If the owner has left, a former cohabitee may be able to apply. The important thing is to act quickly and contact one of the free advice agencies listed in the 'Where to turn' section of this leaflet.

How to apply under the Act?

An application under the Act can be made when the case calls in court. Your lender's "summary application" - that is the formal Court papers served on you - will set out the date the case will call before the Sheriff. You will normally need a solicitor to represent you in court and you can access one through the free advice agencies listed at the end of this leaflet. You may be eligible for civil legal aid or advice and assistance which can pay for outlays and whatever needs to be done to defend you.

When you see a solicitor or any advisor remember to bring the following paperwork:

• the court papers served on you,
• proof of your income,
• a recent bank statement,

• letters from your lender or Sheriff Officer.

What can the court do?

On an application under the Act the sheriff can continue or freeze (sist) the case in order for you to pay your mortgage and pay something towards arrears.

The Sheriff can also give you time to sell your home or make an application under the Scottish Government's Mortgage to Rent scheme which enables you to become a secure tenant of your home by selling it to a housing association or council.  

There may be other options. For example, the Scottish Government operates a shared equity scheme through its Homeowner Support Fund. It is always wise to get independent advice before deciding on your best option.

Contacting your lender

If you do enter into a repayment plan with your lender please remember that if they have raised a court action against you the repayment plan will not of itself prevent a court judgment being granted. They may get this by default if you fail to make an application under the Act when the case comes to court.

Although your lender may say they will not enforce this court order, if you get into further difficulties they can. It is always safer to use the Home Owner and Debtor Protection (Scotland) Act to prevent any court order from being granted and to provide you with the maximum legal protection. Using the Act will also enable you to get the court case dismissed once you've established regular payments.