Van McKellar | Partner

Taking the law into your own hands

It’s well known that a party can’t take the law into their own hands, without running severe risks of legal consequences for having done so.


That’s specifically provided for in Scottish landlord/tenant law; not only the common law but also specific legislation (section 23 of the Rent (Scotland) Act 1984) protects a party who occupies a property from being ejected unless and until proper legal process has been followed.


Originating in our common law and repeated in 55 year old legislation (the 1984 Act renewed earlier legislation), there is nothing new in this.  That’s long standing law in Scotland.  But where problems can arise is when the Scottish procedural rules change.  That’s happened recently with large parts of Scots landlord/tenant law being transferred from the jurisdiction of the Sheriff Court to that of the First Tier Tribunal (Housing and Property Chamber) (“HPC”).   Whether the court’s powers to stop illegal ejection have been transferred from the courts to the HPC is currently exercising a Sheriff in Dumfries Sheriff Court.

It’s alleged in that case that, following the breakdown of a personal relationship, a property owner sought to eject his ex-partner from that property without legal process.  The ex-partner applied for the protection of Dumfries Sheriff Court.  The property owner challenged the court’s jurisdiction, arguing the HPC has jurisdiction.  The Sheriff is determining matters incrementally and has so far issued two judgements.

In the first, the Sheriff has decided that, as the ex-partner occupied the property with the owner’s permission, she is not a squatter and generally is protected from being ejected without legal process, that by virtue of the common law and the 1984 Act.  That decision was unsurprising and uncontroversial.  But the Sheriff said that the consequence of that decision was then to pose a far more topical question as to whether the court retained jurisdiction to issue a protective order, or if jurisdiction had been transferred to the HPC.

The Sheriff turned to try and answer that topical question in his second judgement, concentrating on the statutory right set out in the 1984 Act.  The Sheriff decided that he had jurisdiction to answer the question and answering that technical question was the subject matter of his second judgement.  He has however said he will have to write a third judgement, yet to be issued, in which he would determine the question as to whether the ex-partner is entitled to seek the court’s protection, or instead has to apply to the HPC for protection.   That important and topical question now awaits the court’s answer in its further judgement.

It will be helpful to have the court’s further judgement so as to help advise clients as to whether a court or the HPC has jurisdiction over what can be a very important practical issue.  While the Sheriff’s decision is not precedent it will be helpful guidance on this difficult question.  This is an example of the law of unintended consequences which can arise from transferring jurisdiction away from courts; while most of the legal areas that are transferred to the HPC’s jurisdiction are beyond doubt, there are always likely to be some ‘grey areas’ and which require court rulings (or subsequent legislation) to clarify .  It is unfortunate that a matter as important as which forum it is that has jurisdiction to protect someone from unlawful ejection is a grey area and the subject currently of legal uncertainty.  It seems surprising that something as important as this aspect might have been transferred away from the courts to a new and as yet relatively untested Tribunal

Van McKellar

Van McKellar

Dispute Resolution Team

“I see my role as a problem solver – seeking to understand the factual basis of my clients’ disputes and applying a legal and commercial analysis in seeking to resolve them, whether by negotiation or by means of litigation or some other alternative means of dispute resolution.”

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