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Herity -v- Glasgow Housing Association Ltd

Sheriff Wood, Glasgow Sheriff Court, 17 January 2008

Act - Pursuer - Dailly, Govan Law Centre
Alt - Defender - Browne, Glasgow Housing Association Ltd

GLC casenote

In this case the landlord had recovered possession of the pursuer's tenancy by way of statutory abandonment procedure on 8 August 2007, in terms of sections 17 and 18, Housing (Scotland) Act 2001.  This had taken place notwithstanding that there was a defended eviction action for rent arrears ongoing before the court.  The pursuer raised a summary application under section 19 of the 2001 Act challenging the recovery of the tenancy. 

The pursuer had a preliminary plea-in-law that the recovery was incompetent as the second abandonment notice was served one day early.  Following the case of Sutherland v. City of Edinburgh District Licensing Board 1984 SLT 241 a preliminary plea had to be disposed of in limine (at the outset of the case).

The relevant part of section 18 provided as follows:

    18 Repossession 
    (1) A landlord wishing to take possession of a house under section 17(4) must serve on the tenant a notice— 
    (a) stating that the landlord has reason to believe that the house is unoccupied and that the tenant does not intend to occupy it as the tenant’s home,
    (b) requiring the tenant to inform the landlord in writing within 4 weeks of service of the notice if the tenant intends to occupy the house as the tenant’s home, and
    (c) informing the tenant that, if it appears to the landlord at the end of that period that the tenant does not intend so to occupy the house, the tenancy will be terminated with immediate effect.
    (2) Where— 
    (a) the landlord has— 
    (i) served on the tenant a notice complying with subsection (1), and 
    (ii) made such inquiries as may be necessary to satisfy the landlord that the house is unoccupied and that the tenant does not intend to occupy it as the tenant’s home, and
    (b) at the end of the period mentioned in subsection (1)(b) the landlord is so satisfied, 
    the landlord may serve a further notice on the tenant bringing the tenancy to an end with immediate effect.
    (3) Where a tenancy has been terminated in accordance with this section the landlord is entitled to take possession of the house without any further proceedings.

The pursuer's position was that 28 clear days notice was required between the service of the first abandonment notice and the second; and that the landlord could only serve the second abandonment notice - terminating the tenancy and giving a right to take possession - 'at the end of the period'.  In other words the day after the 4 week period elapsed.  

Here, the defenders had served their first notice on Wednesday 11 July 2007 and the second on Wednesday 8 August 2007.   The defenders initially maintained that service had taken place on the 29th day following the first notice.

The pursuer advanced the following argument and authorities. 

Paras 819-826, Volume 22, Stair Memorial Encyclopaedia.   At para 820 it is noted that Bell asserts the normal method of calculating time (unless a statute provides for an alternative method) is de die in diem, that is civilis computatio:  "i.e. that fractions of days are not to be reckoned, but computation is to the midnight following or preceding the last day of the specified term" (Bell Principles, 10th edn, 1899, by W Guthrie, s.46).

At para 822, it is observed that "In civilis computatio fractions of days are ignored and the general rule is that the day from which the period runs is excluded, the period being deemed to commence at midnight on that day", numerous case law authorities are cited to support this assertion.  In the present case the pursuer placed reliance on McMillan v H.M.A. 1983 SLT 24 and Parish Council of Cavers v. Parish Council of Smailholm and Parish Council of Urr (1908) 16 SLT (IH). 

Accordingly, in the present action the pursuer's position was when the notice was served on Wednesday 11 July that part day fell to be excluded and therefore the first day of notice was counted from Thursday 12 July.  4 weeks from that date fell on Wednesday 8 August.   Thus the last day of the 4 week period expired just before midnight on Wednesday 8 August.  The earliest date the second notice could be served was therefore Thursday 9 August.  In the course of the case being re-called before the Sheriff, the defenders conceded this point and consented to the pursuer's motion for declarator and expenses as agreed.  The pursuer's tenancy was reinstated.