Govan Law Centre

Smith v. Dundee City Council


Judgement of Sheriff F.R Crowe (GLC note: The defenders marked an appeal to the Sheriff Principal, which was assigned for 27 September 2002, but have now abandoned their appeal, and will implement the court's decree. The full judgment represents some 20  pages and the following is, therefore, an extract of key passages from same - there is nowseparate outstanding Human Rights Act1998 damages claim & action, as a result of this successful cause).

Act: Dailly, Govan Law Centre, Glasgow
Alt: Ms. K Ayres, instructed by the Director of Support Services, Dundee City Council

Dundee, 19 June 2002.

The Sheriff, having resumed consideration of the cause, Sustains the Applicant's first plea-in-law and in terms thereof Makes an Order under Section 51(2) of the Housing (Scotland) Act 1987 to continue the Applicant's secure tenancy of the subjects known as [address], Dundee failing which, in the event that the premises have already been re-let, Ordain the Respondents to make other suitable accommodation  available to the Applicant. Finds the Respondents liable to the Applicant in the expenses of the cause and Allows an account thereof to be given in and remits the same when lodged to the Auditor of Court to tax and to report.



This is a summary application for continuation of a secure tenancy or alternatively for a direction that the Respondents, as landlords, make other suitable accommodation available to the Applicant in terms of Section 51 of the Housing (Scotland) Act 1987 (hereinafter referred to as 'the Act'). Proceedings were raised on 8 August 2001 following the termination of the tenancy by the Respondents on 1 May 2001. The Applicant pleads that he was occupying and intended to occupy the subjects of let as his home and that the Respondents were not entitled in the circumstances to invoke power under the Act terminating the Applicant's secure tenancy. The facts of the case were not in dispute, and the hearing before me took the form of a debate.

The parties had incorporated most of the facts into the record. In addition I was referred to the Abandonment Notice from the Respondents to the Applicant dated 23 March 2001 and a letter from the Applicant's solicitor to the Respondents dated 4 May 2001. The facts which appear to me to be crucial to the case are:-

(1) The parties are designed in the instance.

(2) That the Applicant was formerly the secured tenant of subjects situated at [address], Dundee (hereinafter referred to as "the subjects").

(3) That the Respondents were at all materials times the landlords of the subjects.

(4) On 23 March 2001 the Respondents served on the Applicant a notice in terms of section 50 of the Housing (Scotland) Act 1987 indicating that they had reason to believe that the subjects were unoccupied and that the Applicant did not intend to occupy them as his home.

(5) On 26 March 2001 the Applicant attended at the Respondents' [area] office and gave the duty Housing Officer there a letter confirming that he did intend to occupy the subjects.

(6) On 10 April 2001 the Respondents' Housing Officer Jill Barclay (hereinafter referred to as 'the housing officer') called at the subjects and access was given by the Applicant. There was no electric power in the subjects it having been cut off by the suppliers on 14 March 2001 due to non-payment of account. There were no food in the house, no fridge or cooker and the only furniture was a settee in the living room which was carpeted. The Applicant was scraping a wall of the living room with a screwdriver apparently to remove wallpaper prior to re-decoration.

(7) The Applicant informed the Housing Officer that the rest of his furniture was at his girlfriend's house as they had a child and he was sleeping in that house at night. The Applicant explained the lack of other items such as a washing machine as he was in receipt of income support and was not in a financial position to fully equip the subjects immediately.

(8) The Respondents' Housing Officer did not believe the Applicant that he was in any way living in the said subjects or had any true intention to do so.

(9) The Respondents served a notice bringing the tenancy of the said subjects to an end forthwith on 1 May 2002 in terms of section 50(1) of the Act.

(10) On 4 May 2001 the Applicant's agent wrote to the Respondents following repossession of the subjects indicating that at the visit by the Housing Officer to the subjects the Applicant had stated that he was living at the subjects and intended to occupy the said subjects as his home but the Applicant was not believed by the Respondent's Housing Officer.

(11) The Applicant raised proceedings by summary application on 8 August 2001 in terms of section 51 of the Act following upon the termination of the tenancy of the subjects by the Respondents under section 50(2) of the said Act.


I made the following findings in fact & law that:-  

(12)(i) it was established that on a proper construction of section 50 of the Act, the Respondents had failed to comply with the provision thereof.

(ii) it was established that as at 10 April 2001 the Applicant was in occupation of the subjects and did intend to occupy the subjects as his home.

(iii) it was established that the Respondents did not have reasonable grounds for finding that the subjects were unoccupied as at 10 April 2001 and did not have reasonable grounds as at that date to find that the Applicant did not intend to occupy the subjects as his home.

(iv) in light of the circumstances as found by the Respondents' Housing Officer on 10 April 2001 the Respondents ought to have either served a further notice on the Applicant in terms of section 50(1) of the Act or alternatively raised an action for recovery of possession of heritable possession setting out a breach of contract in order that the Court might hear evidence and determine credibility in relation to occupation of the subjects or future intention to occupy the subjects by the Applicant.

(60) I am of the view that the present case can be distinguished from Tannoch v. Glasgow City Council 2000 HLR 64 and Fallens v. Stirling District Council 1996 SCLR 1058.  While there was evidence that the Applicant was not continuously occupying the subjects as his home there was evidence of a continuing interest in the subjects and an expressed intention to occupy the premises as his home in the near future.  It is clear that where the tenant fails to reply to the first notice following evidence of non-occupation the landlords may, after making necessary enquiries and satisfying themselves of the position, serve the further notice terminating the tenancy.  In this case however the Applicant replied timeously but there was no evidence of the Respondents having made any further enquiries after the meeting on 10 April 2001 prior to repossessing the subjects on 2 May 2001.

(61) In any event I was of the view that the questioning of the Applicant by the Housing Officer on 10 April 2001 was an insufficient basis upon which the Respondents decided to terminate the tenancy and re-possess the subjects. I am of the view that section 50(2)(b) of the Act requires the landlord to make such enquiries as may be necessary to satisfy himself that the tenant does not intend to occupy it as his home. Where as occurred on 10 April 2001 an intention to occupy was expressed and there were some signs to that effect, the Respondents ought to have made further enquiries elsewhere with neighbours etc., before deciding whether to terminate or they could have served a fresh notice under section 50(1) re-starting the procedure and testing the Applicant's expressed intentions to occupy the subjects at an early date.

(62) The period under review from 14 March to 10 April was a relatively short one given there were signs of occupancy and an intention to occupy. Ultimately the Respondents appear to have made their decision on the basis they did not believe the Applicant as to his future intentions. Such a position would be best explored in the context of a summary action for recovery of heritable possession of heritable property rather than under the short-cut statutory procedure which is best deployed in clear cut cases where there has been obvious abandonment or other circumstances such as of the type found in Beggs v. Kilmarnock & Loudon District Council 1995 SCLR 435 where any future intentions can be readily negated.  There may be circumstances in which a tenant replies in writing stating an intention to occupy that further enquiries can readily establish the opposite to be true. Where however as in this case the landlord receives a reply expressing an intention to occupy which is maintained further enquiries seem necessary in terms of section 50(2)(b) of the Act before steps can be taken to terminate the tenancy.

(63) It is equally apparent that mere expressions of intent to occupy frequently repeated cannot frustrate the statutory procedure. In exercising its discretion the local authority ought to be able to list a number of these instances over a reasonably prolonged period coupled with other facts and circumstances tending towards non-occupation before proceeding in this vein.  In the present case the period was a relatively short one.  The Applicant was seen at the subjects on more than one occasion, he responded to the initial notice promptly and arrangements were made relatively quickly for a follow-up visit at which some furnishings were apparent and the intention to occupy was backed up by an expressed intention to re-decorate the subjects. There was no evidence of any further enquiries or advance on the information gleaned on 10 April 2001 before re-possession took place on 2 May 2001.

(64) At the outset the parties indicated there was no dispute as to the facts.  Having heard parties I concluded that the Respondents did not have reasonable grounds for finding that the Applicant did not intend to occupy the subjects as his home. Their decision was based on a failure to believe the Applicant rather than on the basis of a background and history of continuous non-occupation and an absence of evidence from further enquiry showing a lack of intent to occupy.  At no stage was I asked by Miss Ayres for a proof and in light of my decision a proof appeared to be unnecessary.

(65) I found it unnecessary to utilise Convention Law in reaching my decision  but I am of the view that the effect of the Human Rights Act 1998 and Article 8 of the Convention in this context is to emphasis to local authorities the need to take care in following statutory procedures. They require to have an adequate audit trail of information to support decisions made since the procedures when followed lead to an individual being rendered homeless and only having a right to a hearing by an impartial tribunal at a later stage by which time the house may well be relet. The Human Rights Act 1998 entitles an Applicant to rely on Convention rights in legal proceedings and to seek just satisfaction (section 7(2((b)).  Such a crave was not included in these proceedings however.

(66) Accordingly I sustained the  Applicant's first plea in law and made an order under section 51(2) of the Housing (Scotland) Act 1987 to continue the Applicant's secure tenancy of the subjects failing which in the event the premises have already been relet, I ordained the Respondents to make other suitable accommodation available to the Applicant.

I found the Respondents (Dundee City Council) liable to the Applicant in the expenses of the cause as taxed.