defending
evictions
case
digest
defending evictions - case digest
This section contains a selection
of recent decisions of the Scottish courts (and some useful
English decisions), with respect to eviction law and procedure in
Scotland. It in not intended to be comprehensive. The full case
reports can be found in Greens Housing Law Reports (Hous LR), which
are available from W.Green & Sons, 21 Alva Street, Edinburgh;
alternatively you may be able to access Hous LR in any good
reference/ law library.
Notice: New summary cause rules (and Minute for Recall of Decree forms) apply for summary cause eviction actions raised in Scotland on or after 10 June 2002. See also GLC paper on rent arrears and the 'reasonableness' defence.
Glasgow City Council v Nisala 2006 Hous LR 66
In this action Glasgow City
Council had sought decree for eviction upon the basis the tenant
occupied without security of tenure. The Council’s
position was that the tenant had a common law lease, granted
expressly on a temporary basis in terms of a duty under Part II
(homeless) of the Housing (Scotland) Act 1987. Paragraph
5 to schedule 1 of the Housing (Scotland) Act 2001 provides that a
tenancy will not be a Scottish secure tenancy (with security of
tenure) if it let expressly on (a) a temporary basis (b) for a term
of less than six months and (c) in fufilment of a duty imposed on a
local authority by Part II of the 1987 Act.
The court accepted that
all of these requirements had to be stated explicity in the lease in
order for the paragraph (5) exclusion to apply, under reference to
Campbell v. Western Isles Islands Council. There appears
to be a typographical error in the Sheriff Principal’s note at
the second paragraph of [3], where the words ‘(2) for a term not
less than six months’ appear. The word ‘not’
should not be there, as the requirement is ‘for a term less than
six months’.
In the present case the
relevant clauses of the lease simply stated: ‘The house is let
to the Tenant expressly on a temporary basis in the fulfilment of the
duty imposed on the Council by Part II of the Housing (Scotland) Act
1987 (“the Act”) as amended by the Housing (Scotland) Act
2001, and the Council may terminate the Tenancy Agreement at any time
by serving a written Notice on the Tenant ...’.
Significantly, the lease contained no provision as to its term or duration.
Counsel for the defender argued for
the lease could only be excluded from Scottish secure tenancy status
if it also contained an express statement that its duration was for a
period of less than six months. If failed to do so and
therefore paragraph (5) to schedule 1 could not apply.
Sheriff Principal Taylor agreed and held that the lease was indeed a
Scottish secure tenancy. The action was dismissed.
Interestingly, the precursor to
paragraph (5) (paragraph S of schedule 2 of the Housing (Scotland)
Act 1987) did not require a temporary lease to be for a period of
less than six months. It therefore appears likely that
the landlord failed to properly revise its contracts in light of law
reform; and perhaps this case is a reminder to local authorities of
the need to do so.
City of Edinburgh Council v. Porter 2004
Hous LR 46
In this case the defender appeared at the first calling and after
parties were heard the sheriff granted decree for removing under
summary cause rule 8.3(3). The defender lodged a minute for
recall of decree but this was held as incompetent in accordance with
the decision of the Sheriff Principal of the Lothians and Borders in
City of Edinburgh Council v. Ure 2004 Hous LR 2. In Ure,
the Sheriff Principal had held obiter that a minute for recall was
not competent where the defender had appeared personally at the first
calling and had been heard by the sheriff (as a consequence of new
summary cause rule (SCR) 24.1(1)).
Following the rejection of the defender's minute, a member of the
tenant's family, Mr McKie, lodged a minute for recall of decree as a
'qualifying occupier' in terms of sections 14 and 15 of the Housing
(Scotland) Act 2001 (the 2001 Act). His first defence was that
no notice of intention to raise proceedings was served on him as is
required by section 14(2) - if that were correct this would provide
an absolute defence to the action. His second defence was
that it would not be reasonable to grant decree for recovery.
Sheriff
Scott, in adopting a purposive style of interpretation, held that SCR
24.1 should be read as entitling a qualifying occupier to apply for
recall of decree which had been granted in his absence, albiet it may
not have been a decree in absence as far as the defender was
concerned. The sheriff based his reasoning in part upon the
earlier Inner House decision of Pearson and Jackson v. Alison (1871)
9 M 473 where the court referred to the principle of reponing (recall
of decree) as 'a beneficial enactment, which is to be largely interpreted'.
The pursuers, in opposing the competency of the qualifying occupier's
minute, placed reliance upon a recent decision of Sheriff Principal
McInnes in North Lanarkshire Council v. Kenmure (reported in this
edition of Hous LR). In Kenmure, the Sheriff Principal of South
Strathclyde, Dumfries and Galloway took an opposite to Sheriff Scott
(see further: editorial commentary to Kenmure).
By way of overview it might be suggested that the case of Porter
provides a useful counterbalance to Ure. As noted at 2004 Hous
LR 9 the implication of Ure is that if a tenant appears at a first
calling, fails to state a defence and decree ultimately passes, that
tenant is procedurally barred from lodging a minute for recall of
decree under the new summary cause rule 24.1(1). Porter
provides a practical solution, assuming that there is a qualifying
occupier within the household. While a qualifying occupier is
not a party to the tenancy agreement, he or she can nevertheless
defend the action on statutory grounds: for example, it is not
reasonable to grant decree in terms of section 16 of the 2001 Act, or
the action is incompetent as no Notice of Proceedings for Possession
has been served on a qualifying occupier in terms of section 14(2) of
the 2001 Act.
Highland Council v. Roberts 2004 HOUS LR 12
This minute for recall of decree application was unsuccessful because
the sheriff held that he was bound by an earlier decision of his
Sheriff Principal in the unreported case The Highland Council v.
Hunter, 17 January 2001. Hunter is, of course, not binding in
any other Sheriffdom in Scotland, and standing the decision of the
Inner House of the Court of Session in the case of Ali v. Ali 1999
SLT 943, appears unsound per incuriam. In Ali the Extra
Division held that although it was incompetent to seek suspension of
a decree for divorce it was competent to do so against the part of
that decree which related to the payment of a capital sum.
The Inner House in Ali held that 'there is no doubt that the decree
can be split into its constituent parts'.
In Hunter, as in the present case, the defender had lodged a minute
for recall of decree application after the expiry of a charge.
The Sheriff Principal for the Grampian, Highland and Islands held
that there had been only one decree granted covering both eviction
and payment. The service of a charge had triggered summary
cause rule 19(1)(b) (now SCR 24.1(1)(b)) and it was therefore
necessary to lodge the minute for recall of decree before the expiry
of that charge. The defender's minute was therefore incompetent.
Interestingly, the sheriff
in Roberts observes that 'the lodging of a minute for recall of
decree probably does not apply to the part of the decree relating to
ejection and that the minute is probably, therefore, competent in
relation to that part of the decree only'. However, as noted,
because the sheriff was bound by the decision of his Sheriff
Principal he had to refuse the minute for recall of
decree. It is understood that no appeal in this
case proceeded, but in light of Ali v. Ali it seems clear that the
service of a charge for payment should not prevent recall of the
eviction part of a decree - which is separable from the payment part
of the decree.
North Devon Homes Limited v. Brazier [2003] HLR
59, QBD; and Manchester City Council v Romano, Samari (2004) 4 All ER
21; [2004] EWCA (Civ) 834 - Disability
Discrimination Act 1995 as a defence in eviction actions on
antisocial behaviour grounds.
Ms Brazier was
subject to a decree for eviction for antisocial behaviour. She
suffered from a psychotic illness and her hostile and abusive
behaviour was a symptom of her mental illness. It was not
disputed she was disabled for the purpose of the Disability
Discrimination Act 1995 (DDA). At first instance the
court held that it was not constrained by the DDA in making an order
under the Housing Act 1988. Ms Brazier successfully appealed to
the High Court. Mr Justice Steel held that it was
inappropriate for the court to have granted decree for
possession. Where the DDA applied it would be
inappropriate for the court to evict a disabled person for reasons
relating to that person's disability unless it could be reasonably
justified under section 24 of the DDA. In the present
case the landlord had not raised proceedings to protect the health
and safety of neighbours.
In the
conjoined cases of Romana and Samari the English Court of Appeal
upheld the decision in Brazier. However it dismissed the
tenants appeals against eviction on antisocial behaviour grounds
notwithstanding their behaviour was related to a disability, namely
mental illness. The Court of Appeal held that the evictions
were justified on the grounds of danger to health and safety of
neighbours. It took a relatively low threshold approach to the
test for justification under the DDA and warned that: "Unless
Parliament takes rapid remedial action ... the courts may be
confronted with a deluge of cases in which disabled tenants are
resisting possession proceedings by these ... means. ... Parliament
ought to review this legislation at an early date. ...[I]t can lead
to absurd and unfair consequences...".
Tenant
advisors in Scotland may find these cases instructive. In
order to utilise the DDA as a defence in an eviction action it will
be necessary to lead expert medical evidence in order to prove that
the tenant is 'disabled' for the purpose of the DDA and that their
behaviour is symptomatic of their disability (unless such facts can
be agreed in advance).
City of Edinburgh Council v. HT 2003 HOUS
LR 74.
In this action for recovery of heritable possession the sheriff was
satisfied that it was reasonable to evict a tenant and his family
because of anti-social conduct. The court found that the
nature and effect of anti-social conduct was so serious that is was
not reasonable to require Edinburgh City Council to provide
alternative accommodation. In particular, Sheriff
MacKinnon held that the tenancy agreement had been breached by the
tenant by parking on garden ground and running an ice cream business
from the subjects of let, making out 'Ground 1' to schedule 2 of the
Housing (Scotland) Act 2001 (the 2001 Act). Moreover, the
sheriff found that the tenant and his son, HT junior, had been
responsible for alarming and serious anti-social behaviour in the
local community, making out 'Ground 7' to schedule 2 of the 2001 Act.
Having regard to the case of Kyle and Carrick District Council v.
Currie 1996 Hous LR 3, the sheriff was satisfied that the 'element of
culpability in the instant case was in a high and clear degree'.
Although HT junior had been recently diagnosed as suffering from
attention deficit disorder and was now taking medication (Ritalin)
for same, it was significant that the court found that anti-social
conduct had continued, and ultimately that the tenant had not taken
reasonable steps to set boundaries for his son's behaviour. Of
course the fact that 'culpability' for anti-social conduct is
established at a proof does necessarily mean that a tenant is bound
to be evicted.
Of course, where a tenant takes reasonable steps to modify his or
her behaviour the courts have - on occasion - been willing to give a
'another chance'. For example, in Glasgow City Council v.
Cavanagh 1999 Hous LR a tenant convicted of possession of cannabis
resin with the intent to supply from his tenancy was found to have
reformed and modified his behaviour. Sheriff Raeburn QC gave
the tenant another chance after carefully assessing all of the
evidence. In the present case there was no indication of a
similar recognition of wrongdoing and behavioural reform: see
further City of Glasgow District Council v. Heffron 1997 Hous LR 55;
City of Glasgow Council v. Lockhart 1997 Hous LR 9; and City of
Glasgow Council v. Collins 1998 Hous LR 23.
Midlothian District Council v. Brown 1991 SLT
(Sh Ct) 80 - Landlord must plead eviction is reasonable;
no prejudice on the landlord as arrears were not increasing; not
reasonable to evict.
A landlord made no averments (statements of fact in the summons) as
to whether it was reasonable to grant decree for eviction, and
indicated that they did not actually intend to evict the
defender. Sheriff JJ Mitchell held that in the absence of an
averment that it was reasonable for the court to grant an order for
recovery of possession the action was incompetent and was
dismissed: Gordon District Council v. Acutt 1991 SLT (Sh Ct) 78
was followed. The Sheriff noted that even "if the pursuers
had had the intention of using the decree when it could competently
be used, and could not have obtained direct payment from the D.S.S.
of the arrears in question for any reason, I would still have refused
decree. The sum in question was small and was not increasing. The
ordinary remedies for debt do not include loss of a home and it is
not easy in principle to see why this should be otherwise in the case
of rent unless there is at the least a real likelihood that continued
occupation will prejudice the landlord in some way, most obviously by
the risk of current rent not being paid. Here there was no such risk.
Woodspring District Council v. Taylor (1982) 4 H.L.R. 95 is in point".
Midlothian District Council v. Drummond 1991
SLT (Sh Ct) 67 - Onus of proof on landlord to show that it
is reasonable to evict.
In Drummond the defender did not enter an appearance and the case was
undefended. However, the Sheriff at first instance wanted to
know some information about the tenancy history and how arrears had
arisen. The pursuer could not provide this and the action was
dismissed. The Sheriff Principal (O'Brien QC) held that the
sheriff was entitled to dismiss the action, however, in the
circumstances he allowed the cause to be remitted back to the sheriff
to allow the Council an opportunity to produce information as to the
tenant's rent record. The Sheriff Principal noted that "it
seems to me that there must be some material to enable the court to
affirm that it is reasonable to grant an order, and I do not think
that it is any hardship on a landlord to say how long the tenancy has
lasted, and over what period the arrears of rent have accumulated.
Both are within the landlord's own knowledge. Neither is averred in
the present case, and I can understand the sheriff's reluctance to
grant the order when she did not know whether she was dealing with a
bad tenant who was persistently in arrears with rent, or a tenant
with a good record who had only recently fallen into arrears through
some misfortune. Material for the exercise of the court's discretion
may of course be available from other sources, e.g. from the tenant
himself if, though not defending the action, he appears when the case
is called or writes a letter to the court".
Gordon District Council v. Acutt 1991 SLT (Sh
Ct) 78 - Landlord's duty to provide the court with
sufficient information as to whether it is reasonable or not to grant
an order for recovery; need to aver current rent arrears.
In Acutt, the landlord sought decree for eviction in a rent arrears
case which was undefended. There was no indication that rent arrears
were currently due, and no averments as to whether it was reasonable
to grant decree. Sheriff A.L Stewart was minded to dismiss the
action as incompetent unless the pursuer sought to amend the
statement of claim (which he allowed). In a rent arrears case
(equally applicable to Scottish Secure Tenants threatened with
eviction on Ground 1, schedule 2, Housing (Scotland) Act 2001) the
sheriff held that it was necessary to provide a statement as to
current rent arrears: "If the fact that the tenant is in arrears
is not averred in the statement of claim, then, in my opinion, an
essential element is lacking from the statement of claim, the
statement of claim fails to comply with the terms of rule 2, and the
action is clearly incompetent in terms of rule 18 (4). As a matter of
fair notice the statement of claim should say not only that there are
arrears but should also state the amount of the arrears. The
sheriff also held that the court was entitled to expect the landlord
to aver and provide sufficient information about rent arrears in
order for a decision on reasonableness to be made by the court.
Edinburgh District Council v. Stirling 1993
SCLR 587 - eviction proceedings
not to be used solely to recover rent arrears.
In a group of three cases tenants arrears were between £65 and
£297. The defender had applied for income support and
arrears direct (direct deductions from IS to the pursuer). The
sheriff dismissed the action, however, this decision was overturned
on appeal. Significantly, Sheriff Principal Nicholson QC said
that 'I am absolutely in no doubt that if a sheriff were satisfied on
reasonable grounds that the true intention of the landlords in a
particular case [was solely to recover the rent arrears] he would be
entitled to refuse [an order] for recovery of possession as not being
reasonable in the circumstances'.
Perth and Kinross Council v. Roy 1999
Hous LR 10 - whether reasonable to grant decree - proof on
question of reasonableness and cause thereafter continued (in terms
of s.48(2) Housing (Scotland) Act 1987 - now s.16(1) Housing
(Scotland) Act 2001) to give the defender a further chance (which was
not taken up).
A proof was held in an eviction action for rent arrears of over
£2,000. The defender had wrongly thought she was entitled
to move out of her house due to minor disrepair. The house was
found to be habitable. Housing benefit had stopped, however
after the a proof over two days the sheriff gave the defender a
chance to move back into the house and pay her rent. She didn't
do so, and decree passed. Counsel for the defender sought to
argue at appeal that the sheriff had failed to take into account
relevant reasonableness factors - such as the effort to reinstate
housing benefit and that arrears direct had been set up, paying off
arrears between £2 and £3 per week. Counsel for the
defender relied on cases including Blair and Taylor (cited above),
however, the Sheriff Principal (Maguire QC) held that the sheriff had
exercised his discretion properly. Indeed, the sheriff had even
given the defender an extra chance after the proof (which is seldom
done), but the defender had not co-operated.
City of Edinburgh Council v. Forbes 2002 Hous
LR 65 - refusal of proof on averments bearing upon the
reasonableness of making an order for recovery of possession.
In the case of Forbes decree passed in absence and was recalled by
the defender's solicitor. Arrears at the minute for recall of
decree hearing were £1,143. The pursuer moved for decree
of new (de novo). The defender sought to defend the action upon
the basis that it was not reasonable in all of the circumstances,
including factors such as the health of the defender, personal
crises, the defender was on benefit and had recently paid £25 to
arrears. The defender moved for a proof to be assigned so that
evidence could be led. The pursuer either admitted or did not
challenge any of the facts put forward by the defender. The
sheriff took the view that because there were no material facts in
dispute he could proceed to determine the cause on the merits without
the need for a proof. He granted decree of eviction. On
appeal to Sheriff Principal Nicholson QC, it was held that the
sheriff had been entitled to hold that the facts of the case were
sufficiently admitted so as to determine the matter
summarily. The Sheriff Principal noted that the test of
reasonableness was not a fact in itself. Thus if the facts were
sufficiently admitted the sheriff could determine the issue of
reasonableness without evidence being led.
Barclay v. Hannah 1947 SC 245; 1947 SLT 235 the Lord President Cooper considered the question of reasonableness and eviction in the context of the Rent and Mortgage Interest Restrictions (Amendment) Act 1933. He found that 'The Act of 1933 (23 & 24 Geo. V. cap. 32), section 3, begins with a primary prohibition addressed to the Court to the effect that no order for the recovery of possession shall be made unless the Court considers it reasonable to make such an order. Although couched in negative form, that is an imperative direction to the Court to exercise a judicial function on the question of reasonableness, and I can find nothing in what follows to take that duty away from the Court'. In finding that both the sheriff and the sheriff principal had erred in law in treated the reasonableness defence as irrelevant, the Lord President stated: 'I consider that the Sheriff's judgement cannot stand, and that the case must go back to the Court below for proof of the averments bearing upon the reasonableness of making the order, unless the parties, who do not seem to be very far apart, are able to agree on a minute of admission and renunciation of probation'.
Significantly, in the Barclay v. Hannah case the First Division expected a proof on reasonableness, unless the parties were able to agree on 'a minute of admission and renunciation of probation'. In the case of City of Edinburgh Council v. Forbes what we find is that SCR 18(9) (the new equivalent rule is now SCR 8.3(3)(d)) being used a very unsophisticated 'minute of admission' device. Yet, this device is incapable of providing a 'fair and public hearing' in eviction cases. Undoubtedly, the new SCR 8.3(3)(d) works well for straight-forward relatively simple payment of money actions - where the key issue is: do you owe this money? - however, it is grossly inappropriate to use this rule to give '60 second hearings' for a tenant and children facing the loss of the roof over their heads.
Besides working for the possible reform and clarification of rule SCR 8.3(3)(d) in the context of eviction cases what can tenants in the Lothian and Borders do? Forbes is binding in the Sheriffdom of Lothian and Borders, and is therefore not easy to overcome (with a leapfrog appeal). Challenging the practice and policy of Edinburgh City Council to admit and not challenge reasonableness averments could be considered. For example, a tenant recalling a decree (or at a first hearing) who only has a defence on reasonableness could request an adjournment of eviction proceedings in order to await the outcome of a petition for judicial review. The author has successfully used this approach on behalf of traditional travelling people in Scotland facing eviction in the sheriff court: see further the decision of the English Court of Appeal in Avon CC v. Buscott [1988] QB 656; [1988] 2 WLR 788; [1988] 1 All ER 841; and (1988) 20 HLR 385. Any petition would need to set forth a cogent case on traditional judicial review grounds, and would no doubt seek to rely on the Human Rights Act 1998 (arguing the Council had a practice and policy which was unlawful having regard to its effect under reference to Articles 6, 8 and 1 of the First Protocol).
Govan Housing Association -v- Thomas Kane (6
July 2001, unreported, Sheriff Johnston, Glasgow Sheriff Court)
Assured tenancies; service of Notice to Quit; whether competent
for an officer of a housing association to effect service personally.
Held that a Notice to Quit required to be served in terms of Ordinary
Cause Rule 34.8 (as applied by paragraph 3(2) and rule 68 of the
Summary Cause Rules; and section 38, Sheriff Courts (Scotland) Act
1907). A housing association officer could effect service by way of
recorded delivery letter, but only a sheriff officer could effect
personal service in terms of OCR 34.8. The eviction action was
therefore dismissed upon the basis that the Notice to Quit was
invalid and of no effect. [see: Sheriff's
Note]
Morgan -v- Morgan and Kyle & Carrick
District Council 2000 Hous LR 90
Rights of non-entitled spouse following irritancy of lease.
Held that the status and rights of a non-entitled spouse could only
be created and continued where there was a spouse with an entitlement
and were not vested or permanently secured by the Matrimonial Homes
(Family Protection) (Scotland) Act 1981. Held that where an entitled
spouse's tenancy ended through irritancy and a subsequent decree of
ejection, there was no longer a tenancy to transfer to a non-entitled
spouse under s.13, 1981 Act; and appeal to the Sheriff Principal
dismissed. (Dumfries and Galloway at Ayr, 12 June 1984).
Castlemilk East Housing Co-operative Ltd -v-
Nixon 2000 Hous LR 133
Minute for Recall of Decree - whether competent - whether decree
pronounced under summary cause rule18(6) or 18(9) (SI 1976/476).
Defender's appeal where minute for recall refused. D's position was
that when decree had been granted, he had never stated a defence and
that decree must have been pronounced in terms of scr 18(6). The
sheriff hearing the recall motion held that decree had been granted
oin terms of scr 18(9) - where recall is not permissible (18(9) -
'where the sheriff is satisfied that the facts of the cause are
sufficiently admitted, he may decide the cause on the merits at the
first calling ...'). D had argued he never made any 'admissions'.
Held (Sheriff Principal Bowen QC) that it could not be accepted that
admissions only concerned express or specific admissions; situations
could arise where the stance adopted by the parties and the
procedural history of the case made their respective positions plain
and lead to clear factual inferences; the Sheriff was entitled to act
as he did, as it was sufficiently clear from the history of the case
that substantial arrears of rent were not in doubt. (Glasgow, 19
October 2000). GLC note: the lesson
from this case is always have instructions from the client to be in a
position to state a defence at the first calling, where a repayment
plan may not possible.
MacLeod -v- Alexander 2000 Hous LR 136
Action for unpaid rent; tenant seeking abatement of full rent -
whether competent.
Held (Sheriff Croan) that the subjects had not been reasonably fit
for human habitation, however, the landlord's breach of contract was
found to have occured in November 1998 (the landlord requiring notice
of disrepair and a reasonable period of time in which to carry out
repairs; thereafter breach may occur) and rent was due from February
to November 1998; decree for part of rent granted. (Sheriffdom of
North Strathclyde at Kilmarnock, 14 July 2000).
Kirk Care Housing Association -v- Clugston 2000
Hous LR 107
Eviction action; defender concerned in supply of cannabis;
defenders' family rendered homeless if evicted; consideration of
whether reasonable to grant decree for recovery.
The defender had argued that the action should be dismissed as
reasonableness encompassed the overriding test of equity and there
was nothing in the pursuer's pleadings to suggest that the action was
reasonable (which was in contrast to Glasgow City Council -v- Lockhart
1997 Hous LR 99 - which stated that public interest, the
reasonableness of evicting an innocent joint tenant, gravity and the
consequences of eviction should be considered).
Held (Sheriff Croan) that the activity (supply of cannabis) was a one
off event; the consequences to the family outweighed the seriousness
of the offence; it would be unreasonable to grant decree; the sheriff
considered the four factors (see above) as set out in GCC -v-
Lockhart (Sheriffdom of North Strathclyde at Kilmarnock, 6 April 1999).
Royal Bank of Scotland -v- Boyle 1999 Hous LR 63
Eviction action; short assured lease contained provision for
irritancy for non-payment of rent, however the terms of the lease
differed from the statutory provisions; question - whether the action
was competent in light of the fact the 'irritancy clause' did not
conform to the statutory provisions.
Held (Sheriff Principal Wheatley Q.C) that the essential ingredients
of the grounds of recovery in Schedule 5 to the Housing (Scotland)
Act 1998 must be referred to in the tenancy agreement, and while this
could be done by an exact citation of the grounds, and maybe also by
providing a summary containing the essential ingredients of the
grounds, incorporation by reference would not necessarily be
appropriate; tenant's appeal successful. (Sheriffdom of Tayside,
Central and Fife at Stirling, 21 May 1999).
Cameron -v- Abbey National plc 1999 Hous LR 19
Eviction action;
ejection of assured tenant of private landlord who defaulted on
mortgage; ejection proceeding under Conveyancing and Fedual Reform
(Scotland) Act 1970; interim interdict to prevent ejection.
A tenant purportedly under Rent (Scotland) Act
1984 was given 48 hours notice of her eviction. This was the first
she knew that her landlord had failed to pay his mortgage; the lender
was not aware of the creation of tenancy. The tenant sought interdict
upon the basis she was an assured tenant and could only be evicted in
terms of the Housing (Scotland) Act and not under the 1970 Act.
Held (Sheriff MacFarlane) interim interdict
granted; the pursuer appeared to be an assured tenant; having regard
to the balance of convenience, it was plain that the pursuer's
tenancy was voidable and she could only be evicted following
proceedings raised in accordance with the 1988 Act. (Glasgow, 11
March 1999). Applying the principles of Tamroui -v- Clydebank plc,
1996 Hous LR 42.
East Dunbartonshire Council -v- MacRae 1999
Hous LR 18
Reponing Note - decree for recovery of
possession and payment of arrears over £8,000.
Pursuers had raised ordinary cause action (as
arrears were over £1,500) and obtained decree. Defender sought
to repone (recall) the decree. Defender had failed to pay rent for
five years. Pursuers opposed granting of reponing, citing Dundee
City Council -v- Bailey 1998 Hous LR 93.
Held (Sheriff Fraser) that following the
five-bench judgment in Forbes -v- Johnston 1995 SCLR (Scottish Civil
Law Reports) 154, the court had to take a broad view; the Sheriff was
prepared to accept the Defender's excuse for failing to enter an
appearance at face value with regard to his age, fear and ignorance.
Held that it would be wrong for the court to prnounce a view on the
merits of the reasonableness defence at the reponing note hearing, as
these arguments could not be said to be unstateable (with regard to
Forbes -v- Johnston). Decree recalled; and Defender ordered to lodge
written defence within 14 days. (Dumbarton Sheriff Court, 11 March 1999).
City of Glasgow Council -v- Logan 1999 Hous LR 15
Eviction action; decree granted at a rule 28
hearing (which occured as agent had withdrawn from acting); whether
sheriff entitled to grant decree at the rule 28 where the Defender
had attended.
At a rule 28 hearing was assigned when the
Defender's solicitor had withdrawn from acting. At the rule 28
hearing, the Defender attended, however, the Sheriff decided to
decide the case on the merits there and then and granted decree. The
Defender appealed to the Sheriff Principal.
Held (Sheriff Principal Bowen Q.C) that the only
relevant issue at rule 28 hearing was whether there was good cause
for the non-appearance at the proceeding diet; it was not apparent
that the issue of non-appearance was canvassed with the defender;
appeal allowed.
Glasgow City Council -v- Cavanagh 1999 Hous LR 7
Eviction action; tenant convicted of drugs
offence but subsequently reformed; whether reasonable to grant
decree; whether om the public interest to grant decree.
In Cavanagh, the Pursuers said they had a policy
of taking eviction actions in cases where individuals were convicted
of drug dealing in order to protect law abiding tenants and their own
properties, and argued it was reasonable and necessary in the public
interest that decree for recovery of possession to be granted. The
Defender's position was that he had learnt a lesson, had completed
his community service, and was now enrolled in a college course and
it would not serve the community for him to be evicted.
The Sheriff (Raeburn Q.C) dismissed the action
and held that while the Pursuers needed a general policy, any such
policy must be exercised with discretion; that in determining the
issue of reasonableness, it was also necessary to look at the
tenant's circumstances - past, present and future; and that the
public interest was not served by evicting a tenant who had
demonstrated that he recognised his wrongdoing, had repaid his debt
to society, and was trying to make a contribution to society by
taking further education with a view to finding employment. (Glasgow,
7 August 1998).
City of Edinburgh Council -v- Allan 1999 Hous
LR 3
Eviction action; whether reasonable to evict;
whether court required to take welfare of children into account - in
terms of ss.17(1)(b), 22, 25(1)(c) and 26(1)(c) of the Children
(Scotland) Act 1995 (c.36).
A local authority received numerous complaints
about the conduct of a tenant's children, concerning breaking of
windows, verbal abuse, and throwing stones at a glazier repairing a
window. There were also other problems with vandalism and fire
hazards. It was argued for the Defender that in determining whether
the landlord should be required to make other accommodation available
on eviction, the provisions of the Children (Scotland) Act 1995
required to be considered; and that it would not be in accordance
with the principles of the Act to evict the tenant and make her
children effectively homeless.
Held (Sheriff Poole) that the court had a duty to
consider a child's welfare as paramount before reaching a decision,
but that there was a duty to consider the welfare of any child - not
just the tenant's children and decree granted.(Edinburgh, 9 July 1998).
Woodspring DC v. Taylor (1982) HLR 95 - not reasonable to evict where rent was now being paid by Housing Benefit and arrears reduced by arrears direct.
The Court of Appeal (for England & Wales) overturned the decision of a judge at first instance granting an eviction order. Lord Justice Waller held that no reasonable judge could have found it reasonable to grant an order when the defendants were now in receipt of benefits, and the then DHSS was now meeting rent plus £1 per week to arrears.
Second WRVS Housing Society v. Blair (1987) 19 HLR 104 - not reasonable to evict; failure of judge to consider availability of welfare benefits.
In Blair a judge at first instance granted decree for eviction where a tenant had accrued arrears after becoming mentally ill. He had spent his rent money on food. The English Court of Appeal overturned this decision because the judge has failed to consider the question of reasonableness and in particular the availability of benefits. For example, it was noted that rent could be paid direct to the landlord, and there other benefits the defendant might have been entitled to given his ill-health. Lord Justice Dillon said: 'It is well known that arrangements can be made with the DHSS when housing benefit is payable to see that the rent is paid direct to the landlord and I feel that is a matter which should have been taken into account'.