Civil legal assistance in mortgage rights cases

Legal aid is available 

Because of the current economic climate, there has been significant publicity about building societies and banks repossessing properties and about home-owners who are having difficulties in making mortgage payments. Some publicity has suggested that legal aid is not available, particularly when court proceedings are involved. That is incorrect.

Advice and assistance is available for any matter of Scots law and allows a solicitor to give advice on problems an individual may have before court proceedings are raised. In advice and assistance the solicitor decides if an applicant meets the eligibility tests, which are that the matter must relate to Scots law and the applicant meets the financial eligibility criteria.

Civil legal aid may be available to defend court proceedings for repossession either in relation to a tenancy or where mortgage payments have not been met. The Board decides if an applicant qualifies for civil legal aid. The criteria to be considered are:

• whether the applicant has a plausible case
•  whether it is reasonable in all circumstances that civil legal aid is made available, and
• whether they meet the financial eligibility criteria.

Both advice and assistance and civil legal aid are frequently made available in such cases.

The Scottish Legal Aid Board does not give legal advice. If you want to contact a legal aid solicitor please see the section of our website “getting legal help”.

We grant most applications for legal aid for these cases

We grant more than 80% of applications for legal aid for mortgage rights and repossession cases.  Recent changes to eligibility for civil legal aid (see our web page on extended eligibility) mean that more people than ever before now qualify financially for civil legal aid.

Most people don’t pay, or pay very little, towards their legal aid

Some media reports have suggested that even if you get legal aid for cases such as these, you could end up owing the Board thousands of pounds or even losing your house to pay a debt to the Board.

Depending on your income and capital, and on whether you win your case, you could have to pay something towards your legal aid – but you certainly won’t have to sell your house to do so.  

• You may have to pay a contribution – you can normally do this in instalments over as much as 48 months (and if you have difficulty in paying over this period, we may be able to arrange another payment schedule with you).  You can use our financial eligibility calculator to get an idea of the maximum contribution you might have to pay.  If we grant legal aid, we will tell you the maximum contribution you will have to pay. But if your solicitor estimates the case is likely to cost less than this, we can initially limit the contribution you pay to the amount they estimate.  (Although if the case ends up costing more than the estimate, you may have to pay the full amount we originally assessed you had to pay.)

• If you are successful in your case, you may have to pay something towards the cost of the case from the property that you manage to keep.  (This is sometimes called clawback.)  However, this only happens in about half the cases.  If you do have to pay clawback, the average cost is around £200 for advice and assistance and £400 for civil legal aid.  You don’t have to pay immediately – you can put it off until you sell the house (even if you don't sell it for many years) by granting a standard security in favour of the Board or you can pay in instalments.  No one has ever had to sell their house to pay the debt to the Board – and without legal aid they would probably have lost title to the property.

Links to more advice

If you need advice about mortgage rights or repossessions, but don't want to consult a solicitor at this stage, there are various other organisations that may be able to offer you some help.  We give some links below to debt advice available on some other websites.

www.keepingyourhome.co.uk

Shelter Scotland

Money Advice Scotland

Citizens Advice Scotland

National Debtline

The Scottish Legal Aid Board currently funds a number of targeted civil offices and projects across Scotland for more information click here. 

The Scottish Legal Aid Board does not give legal advice. If you want to contact a legal aid solicitor please see the section of our website “getting legal help”.