Scottish Sheriff Court Decisions

Inverness 22^nd July 2010 Sheriff Philip Mann

Act: Mr D MacKenzie

Alt: Mr A Kerr

The Sheriff, having resumed consideration of the Cause:

Finds in Fact:

1. The Parties are as designed in the instance.

2. The Pursuer was the tenant and the Defenders were the Landlords of 18 Orchard Park, Beauly, IV4 7DU (hereinafter referred to as "the house"). The tenancy commenced on 6 October 2008.

3. On 28 September 2009 the Defenders served a notice on the Pursuer in terms of Section 18(1) of the Housing (Scotland) Act 2001 ("the Act").

4. On 4 October 2009 the Pursuer wrote to the Defenders in response to the notice stating that she was living at the house and intended to continue to do so.

5. On 30 November 2009 the Defenders prepared a further notice purporting to terminate the tenancy of the house in terms of Section 18(2) of the Act. This notice was served on the Pursuer on 30 November 2009

6. The Defenders repossessed the house on 2 December 2009.

7. Between 6 October 2008 and 30 November 2009 the Pursuer did not occupy the house continuously. She was working furth of Beauly and was able to occupy the house only rarely and occasionally, depending on her work commitments. When not residing in the house, the Pursuer was accommodated at her place of work.

8. During the period mentioned in finding in fact 7 the Pursuer carried out various works of improvement to the house. She decorated it and laid wooden flooring. As at 2 December 2009 the house was in a good state of decoration and repair.

9. At one point during the said period the Pursuer intended to sublet the house but at all material times the Pursuer intended to occupy the house as her home. As at 26 October 2009 the Defenders believed and accepted that that was the case.

10. Subsequent to 26 October 2009 the Pursuers carried out further enquiries and determined on the basis of the information obtained as a result of those enquiries to serve the further notice dated 30 November 2009.

Finds in Law:

1. The Defenders were not entitled to serve the further notice, dated 30 November 2009, terminating the Pursuer's tenancy of the house in terms of section 18(2) of the Housing (Scotland) (Act) 2001.

2. The Defenders did not have reasonable grounds, either as at 26 October 2009 or as at 30 November 2009, to believe that the house was unoccupied or that the Pursuer did not intend to occupy it as her home.

THEREFORE:

SUSTAINS the Pursuer's first plea in law (added by amendment); DIRECTS the Defenders to make suitable accommodation, other than 18 Orchard Park, Beauly, IV4 7DU, available to the Pursuer; FINDS the Defenders liable to the Pursuer 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.

Sheriff

Note/

Note

1. Introduction

1.1 This is a summary application under and in terms of section 19(1) of the Housing (Scotland) Act 2001 relating to the Pursuers' tenancy of 18 Orchard Park, Beauly. Sections 17 to 19 of the Act, so far as relevant to this application are in the following terms:

17 Abandoned tenancies

(1) This section applies where a landlord under a Scottish secure tenancy has reasonable grounds for believing that-

(a) the house is unoccupied, and

(b) the tenant does not intend to occupy it as the tenant's home.

(2) .....

(3) .....

(4) The landlord may take possession of the house in accordance with section 18.

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.

(4) .....

19 Tenant's recourse to court

(1) A tenant under a Scottish secure tenancy who is aggrieved by termination of the tenancy by the landlord under section 18(2) may raise proceedings by summary application within 6 months after the date of the termination.

(2) Subsection (3) applies where, in proceedings under this section, it appears to the court that the landlord-

(a) has failed to comply with any provision of section 18,

(b) did not have reasonable grounds for finding-

(i) that the house was unoccupied, or

(ii) that the tenant did not intend to occupy it as the tenant's home, or

(c) was in error in finding that the tenant did not intend to occupy the house as the tenant's home, and the tenant had reasonable cause, by reason of illness or otherwise, for failing to notify the landlord of the tenant's intention so to occupy it.

(3) Where this subsection applies the court must-

(a) if the house has not been let to a new tenant, grant a declarator that the notice under section 18(2) is of no effect, or

(b) in any other case, direct the landlord to make other suitable accommodation available to the tenant.

(4) On granting a declarator under subsection (3)(a) the court may make such further order in relation to the Scottish secure tenancy as it thinks fit.

(5) ....

1.2 The Pursuer was aggrieved by the termination of her tenancy by the Defenders in terms of section 18(2) of the Act. Initially the Pursuer's case was based on section 19(2)(b) of the Act, namely that the Defenders did not have reasonable grounds for finding that the house was unoccupied or that the Pursuer did not intend to occupy it as her home. At the commencement of the submissions on 21 June 2010 I allowed the Pursuer's opposed motion to amend so as to introduce a case under section 19(2)(a) of the Act, namely that the Defenders had failed to comply with a provision of section 18 of the Act. The Pursuer's minute of amendment was designed to reflect the evidence which had been given, principally that of Mrs Ann Edwards, and to focus the real dispute between the parties. I was satisfied that Mrs Edwards' evidence that as at 26 October 2010 she accepted that the Pursuer intended to occupy the house as her home could not have been anticipated in advance and that it was fair and just that the record be amended to reflect it. The Pursuer's primary case then became that the Defenders were not, in fact, satisfied in terms of section 18(2)(b) of the Act and, accordingly, they were not entitled to serve the further notice under section 18(2) terminating the Pursuer's tenancy.

2. The Evidence

2.1 I heard evidence on 20 April 2010 and 11 June 2010.

2.2 The Pursuer gave evidence that because of her work commitments she was unable to occupy the house on a full time basis. Her evidence was that, for the most part, she was unable to occupy the house during the week but that she frequently occupied the house at weekends. Initially, she said, she had been unable to live in the house because of its poor condition. She had spent a lot of money decorating the house and laying wooden flooring and generally making it comfortable to live in. At all material times she had every intention of occupying the house as her home. The Pursuer denied that she had ever intended to sublet the house. She referred to photographs taken by her to illustrate the state of decoration and furnishing of the house. These had been taken after the Defenders had repossessed the house when she had been given access to enable her to remove her belongings. The Pursuer indicated that the house was sparsely furnished partly because of financial and time constraints and partly because sparse furnishing was the norm in her native Poland. The Pursuer was supported in general terms by her witnesses Andrzej Stodulski and Dr Milo Bieniecki.

2.3 Mr Stodulski said that he had visited the Pursuer at the house on a few occasions. He confirmed that the house appeared to be "lived in". He had assisted the Pursuer in the removal of her furniture after she had been "evicted".

2.4 Dr Bieniecki confirmed the nature of the Pursuer's employment with him which necessitated her sleeping overnight during the week at her place of employment. He had occasionally visited the Pursuer at the house at weekends to discuss work related matters. He had helped the Pursuer remove some of her furniture from the house after she had received the Defenders' notices. He said that the Pursuer was very proud of her house. He confirmed that he had assisted the Pursuer with translation in her discussions with the Defenders when they were enquiring about whether or not she intended to sublet the house. He had spoken to a Council official and had advised her that there was no intention on the part of the Pursuer to sublet the house.

2.5 The Defenders led evidence from various witnesses. The first was Elizabeth Ewen, a Visiting Officer in the Defenders' housing department. She had visited the house on two separate occasions in August and September 2009 and had seen little sign of occupation. When, during cross examination, she was referred to certain photographs she agreed that they might indicate that the house was occupied and furnished.

2.6 Helen Carmichael was a local councillor who gave evidence that she had received many complaints about the Pursuer apparently not occupying the house and about her own observations, made inter alia as she walked her dog in the vicinity, which led her to believe that the complaints were well founded.

2.7 Heather Hewson was a neighbour who deponed that in her opinion and from her own observations the Pursuer rarely, if ever, stayed at the house.

2.8 William McLean was an Antisocial Behaviour Investigator employed by the Defenders. At the start of October 2009 he had been asked to review matters by Ann Edwards, the Defenders' Principal Housing Officer, because of what was described to him as an impasse situation with the Pursuer. On 8 October 2009 he had reviewed the Defenders' file including the tenancy application, the tenancy agreement and correspondence passing between the parties. He had then visited the property on 13 October 2009. He had knocked on the door of the house and had received no response. This was at about 2:30pm. He had been able to look through the ground floor windows of the house but had a restricted view of the interior. He formed the impression that the house was not being lived in. He next visited the property on 26 November when the interior of the house, including the arrangement of pots and pans on the kitchen cooker and the presence of a packet of biscuits, was much the same as on his first visit. This reinforced his view that the house was not being lived in. He had again visited the property on 30 November 2009 and 2 December 2009, both times in the company of Miss Murray, an employee of the Defenders. What he referred to as the abandonment notice was posted through the letterbox of the house on the first of those occasions. On both of these occasions the house was in the same state as on his previous visits. On the visit of 2 December access was taken to the house and the photographs lodged as Defenders' productions had been taken.

2.9 Brian Cameron was the Defenders' Housing Policy Manager at the time of service of the notice in terms of section 18(1) of the Act. He described the procedure and communications with the Pursuer leading up to the service of that notice. He had been advised by a member of the Landlords' accommodation team that there was a suggestion of the house being sublet. There was a suggestion that The Pursuer might not be living there. He had visited the property in July 2009 and had been of the view that it appeared as if no-one was living there. One of the things that he noticed was that it was a bin collection day and, unlike neighbouring houses, the bin for the house had not been put out for collection. He had also received information from Councillor Carmichael about representations that had been made to her and about her own observations.

2.10 Sheena Campbell, an Accommodation Officer in the employment of the Defenders, gave evidence that she had dealt with a housing benefit application submitted by a Polish couple who said that they wanted to rent the house. She had rung the number given to her as the number of the Landlord and had spoken to a lady who identified herself as the Pursuer. A man had called her back on behalf of the Pursuer and had indicated that the house was not for let.

2.11 Mrs Ann Edwards was the Defenders' Principal Housing Officer. She had taken over the case from Mr Cameron after service of the section 18(1) notice, having received a complaint from the Pursuer about Mr Cameron's conduct. She referred to Mr McLean's involvement in the matter and said that very careful consideration had been given to the matter before preparation and service of the section 18(2) notice. Crucially, she gave very clear and unequivocal evidence that she believed the Pursuer when she said in her letter of 4 October 2009, in response to the section 18(1) notice, that she intended to occupy the house as her home. She confirmed that it was some time after 26 October 2009 that she formed the view that the Pursuer did not intend to occupy the house as her home, having received further complaints to that effect and having received a report from Mr McLean.

2.12 The Defenders' final witness was Christine Murray, a Housing Management Officer in the Defenders' employment. She gave evidence about visiting the property with Mr McLean on 30 November 2009 for the purpose of serving the section 18(2) notice. They had knocked on the door of the house and when there was no answer they had both signed the notice on the back and she had posted it through the letter box. She had been able to look through the ground floor windows of the house. They afforded a restricted view of the interior of the house but she had the impression that the house was not being lived in. She and Mr MacLean had again visited the house on 2 December 2009 and with the assistance of a joiner had opened the house and taken possession of it. On this date she had taken the photographs which had subsequently been lodged as productions by the Defenders.

3. Submissions

3.1 I heard submissions on 21 June 2010

3.2 Mr MacKenzie for the Pursuer submitted that the evidence clearly demonstrated that as at the end of the period of the notice under section 18(1) of the Act, namely 26 October 2009, the Defenders were not satisfied in terms of section 18(2)(b) of the Act that the Pursuer did not intend to occupy the house as her home. Being so satisfied was one of the three requirements of section 18(2) enabling the Defenders to serve the second notice terminating the tenancy. Accordingly, the Defenders had not been entitled to serve the second notice terminating the tenancy. The Defenders could be said to have failed to comply with a provision of section 18 and the notice could not be of any effect.

3.3 Mr MacKenzie's alternative position was that, in terms of section 19(2)(b) of the Act and on the evidence, the Defenders did not have reasonable grounds for finding that the house was unoccupied or that the Pursuer did not intend to occupy it as the Pursuer's home. The Defenders were not entitled to rely on any information gathered in the course of investigations subsequent to 26 October 2009 to make the findings referred to. This was because section 18(2)(b) clearly required that a Landlord be satisfied on the matter at the end of the period mentioned in the section 18(1) notice - in this case 26 October 2009 - having carried out investigations in terms of section 18(2)(a)(ii). The clear implication was that the investigations under section 18(2)(a)(ii) had to be carried out during the period mentioned in the section 18(1) notice. Mr Mackenzie's position was that, if not having been satisfied in terms of section 18(2)(b) the Landlords thereafter became satisfied because of further information, the Landlords could only proceed by serving a fresh notice in terms of section 18(1).

3.4 Mr MacKenzie's final and fall back submission was that even if the Defenders had been entitled to rely on further information as a result of enquiries carried out subsequent to 26 October 2009 to enable them to serve the second notice in terms of section 18(2) of the Act, the further evidence did not, in fact, give the Defenders reasonable grounds for finding that the house was unoccupied and that the Pursuer did not intend to occupy it as her home.

3.5 As I understood it, Mr Kerr on behalf of the Defenders conceded that the Defenders had, as at 26 October 2009, accepted the Pursuer's assertion in her letter of 4 October 2009 in response to the section 18(1) notice that she intended to occupy the house as her home. In any event, I find that that was the case. It followed that Mr Kerr could not maintain that the Defenders were satisfied in the way that they had to be satisfied as at that date in terms of section 18(2)(b). Mr Kerr nevertheless maintained that the Defenders were entitled to rely on the results of investigations carried out after 26 October 2009 to find that the house was unoccupied and that the Pursuer did not intend to occupy it as her home and to justify service of the second notice under section 18(2) bringing the tenancy to an end. In support of that proposition he referred to the case of Smith v Dundee City Council 2003 Housing.LR.55. He maintained that, on the evidence, the Defenders had reasonable grounds for so finding and accordingly moved that the summary application be dismissed.

4. Discussion and Decision

4.1 It seems to me that the terms of section 18 of the Act are quite clear and unambiguous. I do not need to repeat or paraphrase them here. I accepted Mr MacKenzie's submission that the Landlord's satisfaction in terms of section 18(2)(b) must derive from such investigations as they have carried out in terms of section 18(2)(a)(ii) within the four week period following service of the notice in terms of section 18(1). If, as a matter of fact, the Landlord is not so satisfied at the end of that period then that seems to me to be an end to the matter. The Landlord cannot thereafter serve a notice in terms of section 18(2) as a result of becoming satisfied through further enquiries after that period without serving a fresh notice in terms of section 18(1).

4.2 In this case, on the evidence, I have found that the Defenders were not satisfied at the end of the period mentioned in the section 18(1) notice that the Pursuer did not intend to occupy the house as her home. Accordingly, it is inevitable that I find in favour of the Pursuer.

4.3 The case of Smith v Dundee City Council is readily distinguishable from this case because in Smith the Landlord did not believe the Tenant's assertion that he intended to occupy the house as his home. Smith was a case under the Housing (Scotland) Act 1987 whose provisions relevant to that action were identical to sections 17 to 19 of the Act. In Smith, the Sheriff held that the Landlords had acted unreasonably in not carrying out further investigations before service of the second notice to confirm the belief that they had come to at the end of the period mentioned in the first notice that the Tenant had no intention of occupying the house as his home. The consequence of that was that the Sheriff found that the grounds for the Landlord's belief were unreasonable and he accordingly found for the Tenant. Mr Kerr's submission was that a Landlord is entitled to serve the second notice under section 18(2) of the Act even if the Landlord's satisfaction, or belief, that the tenant does not intend to occupy the house as his home is based on information from investigations carried out after the expiry of the period mentioned in the first notice under section 18(1). It is not necessary that I disagree with the Sheriff in the case of Smith in order to reject that submission. There seems to me to be no necessary incongruity between on the one hand accepting that the reasonableness of the Landlord's belief as to the Tenant's non intention may be tested by examining, inter alia, the Landlord's actions after the period mentioned in the section 18(1) notice; whilst on the other hand asserting that if, in fact, the Landlord is not satisfied at the end of the period mentioned in the section 18(1) notice as to the tenant's non intention then that is an end to the matter.

4.4 If I am wrong in finding for the Pursuer on the above basis then I must examine the period of time between the end of the period mentioned in the section 18(1) notice and the date of service of the section 18(2) notice. I am not persuaded that the evidence uncovered by the Defenders in that period yields the inference that the Pursuer did not intend to occupy the house as her home. Much of the evidence spoken to by the Defenders' witnesses concerning the lack of furnishings and personal items in the house, and particularly their photographs, was gathered after the service of the second notice. Looking at the evidence as a whole, I am not prepared to say that that evidence is necessarily truly indicative of the state of the house at any time before the service of the second notice. In any event, the Pursuer had clearly and unequivocally indicated in her reply to the section 18(1) notice that it was her intention to occupy the house as her home and she had clearly spent significant sums of money and some effort in redecorating the house and laying wooden flooring. The house was described, even by the Defenders' witnesses, as being in a good state of decoration and repair. There was no evidence of arrears of rent. The section 18(1) notice addressed to the Pursuer at the house elicited a response within a matter of days, suggesting that the Pursuer had been in the house at some point after service of that notice. All of these factors suggested to me that the Pursuer's stated intention was serious and honest. In the face of that I think that, at the very least, the Defenders ought to have given the Pursuer an opportunity to make further representations before coming to the view that she did not intend to occupy the house as her home. In failing to do so the Defenders acted unreasonably and, assuming it to be necessary for me to do so, I am of the view that the grounds for the Defenders' belief that the Pursuer did not so intend were unreasonable.

4,5 I should say that, in general, I found the pursuer to be a reliable and truthful witness, particularly as regards her attachment to the house and her intention, as at 4 October 2009 and thereafter, to occupy the house as her home. I did not believe her when she asserted that she had had no intention of subletting the house. That assertion flew in the face of the other evidence on that point which I found to be convincing. However, that is not fatal to this application. Subletting, if it was without the Landlords' consent, might well have been a breach of the Pursuer's lease but if the house had been occupied by a subtenant that would have been enough to preclude reliance by the Landlord on the statutory procedure prescribed by section 18 of the Act. Of course, a historical intention to sublet might throw some sort of light on a later statement by the Pursuer of a contrary intention but, as I have indicated, I believed the Pursuer's evidence of her intention as at the relevant time. As to the question of actual occupation of the house before commencement of the statutory procedure by the Landlords I preferred the evidence of the Pursuer and her witnesses to that of the neighbour, Mrs Hewson.

4.6 The statutory procedure adopted by the Defenders in this case is designed to enable them to recover possession of properties that have been abandoned. Section 17 effectively defines abandonment as being when the house is unoccupied and when the tenant has no intention of occupying it as the tenant's home. It is, therefore, possible for a house to be abandoned according to that definition without its having been abandoned according to the more common definition which would entail that the tenant retains no interest in the house whatsoever. On appropriate evidence (for example, if the house were unoccupied at the relevant time and the Pursuer's intention were to sublet it rather than occupy it as her home) it might have been possible to hold that the Pursuer had abandoned the house in the statutory sense despite the obvious interest which she retained in the house. Nevertheless, I consider that the procedure adopted by the Defenders in this case was ill suited to the circumstances. It is interesting to note that paragraph 6.4 of the tenancy agreement between the parties - a document prepared by the Landlords - refers simply to abandonment. I consider it to be likely that the vast majority of tenants, who would have no easy access to, or probably any interest in, the statutory provisions, would give this word its more common meaning rather than its restricted statutory meaning. This reinforces my view as to the unsuitability of the procedure adopted by the Defenders in this case.

4.7 In submissions parties agreed that the house has been relet, although there was no evidence to that effect. I have therefore proceeded as required by section 19(3)(b).

4.8 I see no reason to depart from the usual position as regards expenses and have provided accordingly.