Act: Anderson, Q.C.; Henderson Boyd Jackson (for McArthur Stanton, Solicitors, Dumbarton) (Pursuers and Respondents)
Alt: Sutherland; Anderson Strathern, W.S. (for Mike Dailly at Govan Law Centre) (Defender and Appellant)
2 August 2001
 This is an appeal at the instance of the defender from a decision of the Sheriff Principal of North Strathclyde in an action of removing, at the instance of the pursuers, in respect of property at Clydebank tenanted by the appellant.
 The issue is concerned with whether or not the tenancy still enjoyed by the appellant should be classified as a secure tenancy within the meaning of the Housing (Scotland) Acts 1987 and 1988.
 The background to the matter is that the defender entered into a tenancy with Scottish Homes in terms of missives of let dated 15 May 1995. The pursuers, who are a housing association in terms of the Housing Associations Act 1985, as amended by the Housing (Scotland) Act 1988, acquired the landlords interest in the relevant property from Scottish Homes on or about 28 February 1998.
 On 4 November 1998 the pursuers served a notice on the defender to quit and, on 9 December 1998 a notice of intention to raise proceedings for possession under the Housing (Scotland) Act 1988.
 The pursuers contention is that the tenancy is no longer a secure tenancy within the meaning of the statutory provisions but merely an assured tenancy in terms of the Housing (Scotland) Act 1988. The issue is purely one of statutory construction against the admitted factual background.
 As regards security of tenure and secure tenancies the relevant legislation in the Housing (Scotland) Act 1987 is as follows:
44.-(1) Subject to subsection (4) and to section 45 and section 52(6), a tenancy (whenever created) of a house shall be a secure tenancy if -
(a) the house is let as a separate dwelling,
(b) the tenant is an individual and the house is his only or principal
(c) the landlord is one of the bodies mentioned in subsection (2).
(2) The bodies referred to in subsections (1)(c) and (7) are the bodies mentioned in section 61(2)(a) and any housing trust which was in existence on 13th November 1953.
 The bodies referred to in subsection (2) supra (the qualifying landlords) include a number of public authorities but also inter alia the Scottish Special Housing Association, the Housing Corporation or a Registered Housing Association.
 Assured tenancies were created by the Housing (Scotland) Act 1988 and in particular section 12(1) which is in the following terms:
12.-(1) A tenancy under which a house is let as a separate dwelling is for the purposes of this Act an assured tenancy if and so long as -
(a) the tenant or, as the case may be, at least one of the joint
tenants is an individual; and
(b) the tenant or, as the case may be, at least one of the joint
tenants occupies the house as his only or principal home; and
(c) the tenancy is not one which, by virtue of subsection (2)
below, cannot be an assured tenancy.
 By section 43(3) of the same Act the list of bodies who could be regarded as qualified landlords in respect of the creation of a secured tenancy under the 1987 Act was greatly restricted, although it still included Scottish Special Housing Association and Scottish Homes. It no longer, however, included a housing association such as the pursuers.
 Having regard to the way the argument was presented to us we also have to take into account the provisions of section 45 of the Housing (Scotland) Act 1988 of which subsections (1), (2) and (3) are in the following terms:
45.-(1) The provision of subsection (3) below apply in relation to a tenancy which was entered into before, or pursuant to a contract made before, the commencement of this section if -
(a) at that commencement or, if it is later, at the time it is enteredinto, the interest of the landlord is held by a public body (within the meaning of subsection (4) below); and
(b) at some time after that commencement the interest of the landlord ceases to be so held.
(2) The provisions of subsection (3) below also apply in relation to a tenancy which was entered into before, or pursuant to a contract made before, the commencement of this section if -
(a) at that commencement or, if it is later, at the time it is entered
into, it is a housing association tenancy; and
(b) at some time after that commencement, it ceases to be such a tenancy.
(3) On and after the time referred to in subsection (1)(b) or, as the case may be, subsection (2)(b) above -
(a) the tenancy shall not be capable of being a protected tenancy or a housing association tenancy;
(b) the tenancy shall not be capable of being a secure tenancy unless (and only at a time when) the interest of the landlord under the tenancy is (or is again) held by a public body; and
(c) paragraph 1 of Schedule 4 to this Act shall not apply in relation to it, and the question whether at any time thereafter it becomes (or remains) an assured tenancy shall be determined accordingly.
 The defenders contention is that when she entered into the tenancy in 1995 with Scottish Homes it qualified as a secure tenancy in terms of the 1987 Act since the landlords were one of the designated bodies in that Act whose public sector status was preserved by the 1988 Act. It accordingly retained that status, notwithstanding that the interest had been transferred to the pursuers who were not a qualifying landlord, and no assured tenancy in terms of the 1988 Act had been constituted
 It was not disputed by the pursuers that the defender has an assured tenancy under the 1987 Act at the time it was created , the issue being restricted to whether it should be properly regarded as a continuing secure tenancy after the change of landlord interests.
 The argument before us mostly centred round section 45 of the 1988 Act, but we consider that the resolution of this dispute does not lie in the section, and therefore we do not need to rehearse the detailed argument in this respect from each side of the Bar.
 In our opinion the provisions of section 45 plainly apply to tenancies existing at the time the 1988 Act came into force. We consider this is manifest, by reference to the word before occurring twice in subsection (1). The references in the section to a later time than the commencement of the Act refer back, in our opinion, to the alternative mentioned in subsections (1) and (2), namely a tenancy which was not in existence when the Act came into force but was dependent upon, at the time it was entered into, the existence of a contract which pre-dated the commencement of the Act.
 We consider that to be the sole limit of the application of this section which cannot, therefore, have any bearing upon leases entered into after the commencement of the 1988 Act and not made pursuant to a contract existing before it.
 We should add that our view of section 45 also lends content to the 12th paragraph of the 4th Schedule of the `988 Act under the head Transitional which preserves existing secure tenancies, and by existing we mean at the time of that commencement of the Act.
 In these circumstances we consider that neither party can pray in aid section 45 and the question falls to be determined upon the statutory provisions generally.
 There are provisions in section 54 of the 1987 Act which restrict termination of secure tenancies but none of them are applicable here. We have searched the statute to discover whether any express provision is made for the situation prevailing in this case when the landlords interest passes from a qualifying landlord into the private sector as has happened here. We can find none.
 We therefore approach the matter upon the basis that for there to be a secure tenancy, initially under the 1987 Act as amended by the 1988 Act, the landlord must be one of the qualifying landlords now restricted to those listed in section 43 of the 1988 Act. If at any time, in our opinion, the landlords interest changes so as to bring into play a landlord not covered by that list the security of tenure in tenancy, in our opinion, simply flies off. This is consistent with the scheme of the Act being designed to restrict secure tenancies to a limited number of public sector landlords.
 We therefore conclude that at the time the present pursuers acquired the landlords interest in this lease the security of tenure afforded to the defender flew off and she became merely an assured tenant in terms of the 1988 Act.
 In these circumstances, not immediately for the reasons given by the sheriff principal, we consider that he reached the correct conclusion and this appeal falls to be dismissed.
 The case will be remitted back to the sheriff to proceed as accords.
Govan Law Centre note (3 August 2001)
The appellant and defender currently awaits the Opinion of Senior Counsel on the prospects of appeal to the House of Lords (any such appeal would require to be lodged within 3 months).