I advise many clients who are private landlords. Even the best managed tenancy can go wrong. Sometimes a tenant on an assured or short assured tenancy cannot or will not pay the rent, and arrears accumulate beyond the trigger level of three months' rent. Litigation and subsequent removal of the tenant are sometimes the landlord’s only option.

Section 18(1) of the Housing (Scotland) Act 1988 provides that the sheriff shall not make an order for possession of a house let on an assured tenancy except on one or more of the grounds set out in sched 5 to the Act. If the sheriff is satisfied that any of the grounds set out in part 1 of that schedule is established, the Act provides that “he shall make an order for possession”. Ground 8, that there are more than three months' arrears at the date of service of a form AT6 and at the first calling of the removal action, is a part 1, mandatory, ground for removal.

I have had direct experience during the past six months of removal actions in just these circumstances where the tenant appears at first calling or just before, and makes an offer to settle the arrears by instalments but does not bring the arrears below three months' rent before the diet. In all three cases, at Inverness, Edinburgh and Hamilton, the sheriff has repeatedly continued the cause, either to allow the tenant to make a lump sum payment or to allow him to begin instalment payments towards arrears, all against the firm opposition of my clients and positive motions on their behalf for decree for removal and payment. A sheriff’s interlocutor in such circumstances is practically unappealable. It is not a final interlocutor in a summary cause.

The current policy trend appears to be to mitigate, if not avoid, the burden of housing homeless persons that falls on local authorities. Hence, for instance, the requirement of s 11 of the Homelessness etc (Scotland) Act 2003 to intimate the raising of proceedings for recovery of possession to the local authority. It is in my view unjust that the result of this policy and the desire of the judiciary to give the small man his say results in a landlord being required to play the part of unpaid social landlord and free banker while a tenant seeks to rescue what is often in fact a hopeless position.

There must be other agents who have been having similar experiences, who like me are finding that what was intended by Parliament to be a peremptory process is now unwarrantably transformed. Where all of an agent’s persuasiveness cannot overcome the desire of the bench to help the unfortunate in the face of what the Act expressly provides, one wonders where the landlord’s remedy may lie. One can only hope that a raised eyebrow somewhere may reawaken the bench to the meaning of “shall”.

John Macfie, associate, Gillespie Macandrew LLP