SD1463/09
JUDGMENT
OF
SHERIFF JOHN NEIL McCORMICK
in the cause
SOUTH LANARKSHIRE COUNCIL, Housing & Technical Resources, Council Offices, Almada Street, Hamilton ML3 0AA
PURSUERS
against
ELLEN McKENNA, 74 Landemer Drive, Rutherglen, Glasgow G73 2TB
DEFENDER
Act: Mr Upton, Advocate.
Alt: Mr Stalker, Advocate.
GLASGOW, 22nd April 2010.
The Sheriff, having resumed consideration of the cause, assigns 28th May 2010 at 9.30 as a continued First Hearing in terms of Rule 8.2(3) of the Act of Sederunt (Summary Cause Rules) 2002.
NOTE:
[1] This summary cause action concerns the interpretation of Sections 34 and 35 of the Housing (Scotland) Act 2001 and in particular whether the term of a Short Scottish Secure Tenancy, converted from a Scottish Secure Tenancy, must be for a minimum term of six months or whether the term of the earlier Scottish Secure Tenancy continues by tacit relocation so as to define the ish of the Short Scottish Secure Tenancy. This process also involves consideration of Sections 36, 37 and 111 of the 2001 Act.
[2] Counsel had been instructed both by parties. Mr Upton appeared on behalf of the pursuers and Mr Stalker on behalf of the defender. I was advised that the case raises a number of distinct issues which have resonance beyond the parties.
[3] Within the process is a letter dated 2 March 2010 from the pursuers indicating that the parties had agreed that the hearing on 5 March would proceed by way of debate.
[4] When the case called I was advised by counsel that they had considered the hearing to be a continued first hearing under Rule 8.2(3) for the sheriff to determine whether the case is soundly based in law, in whole or in part, under Rule 8.3(3)(c) of the Act of Sederunt (Summary Cause Rules) 2002.
[5] One day had been assigned for the hearing. It became apparent that one day would be insufficient to deal with the issues the parties intended to raise.
[6] It was suggested that if the claim is not sound in law on the basis of restricted submissions made on 5 March 2010, it should be dismissed. If the claim is not dismissed a further continued first hearing could be assigned for the remaining points to be argued.
[7] In the particular circumstances of this case I was persuaded to proceed as jointly suggested by counsel. I realise that this does not give effect to the word "forthwith" where it appears in rule 8.3.(3)(c). However the proposal seemed proportionate and pragmatic having regard to both the time allocated for the hearing and the costs involved.
Submissions on behalf of the defender
[8] At the first calling the defender had intimated that the pursuers' claim was not soundly based in law. The defender lodged a supplementary Note of Defence.
[9] As this is a summary cause action, there are no preliminary pleas. The court will require to determine whether the claim is soundly based in law. If so, the court will then have to consider whether the defence is soundly based in law.
[10] If the claim is not soundly based, the action should be dismissed. If the claim is soundly based but the defence is not, decree should pass in favour of the pursuers.
[11] If both the claim and the defence have a sound basis in law, the court must consider whether a proof ought to be fixed in terms of Rule 8.3(3)(d) of the Act of Sederunt (Summary Cause Rules) 2002, if the facts are not capable of agreement.
[12] The Supplementary Note of Defence raises two separate lines of defence in law.
[13] The first is that the pursuers' notice to quit is invalid. Accordingly, the action should be dismissed.
[14] The second line of defence is that the pursuers are not entitled to raise proceedings because they have failed to provide support services to the defender under Section 34(7) of the Housing (Scotland) Act 2001.
[15] At the hearing on 5 March only the first line of the defender's argument was advanced. The second was reserved for the reasons I have outlined.
[16] Dealing with the first line of argument, the dispute involves Short Scottish Secure Tenancies which were an innovation of the Housing (Scotland) Act 2001.
[17] Counsel outlined the distinctions between a Scottish Secure Tenancy and a Short Scottish Secure Tenancy.
[18] The tenant of a Scottish Secure Tenancy has security of tenure. For the landlord to recover possession the landlord has to establish a ground for eviction and, as an additional requirement, has to show that it is reasonable to grant an order for eviction.
[19] Actions for recovery of possession are commonplace throughout Scotland and often require proofs to be assigned. Such proofs can be substantial if anti-social behaviour is averred.
[20] This is in contrast to a Short Scottish Secure Tenancy. Local authorities and Housing Associations use such tenancies in respect of a certain class of tenant.
[21] The important distinction is that a tenant under a Short Scottish Secure Tenancy does not have security of tenure. Consequently, in an action for repossession, the landlord simply has to show that the period of tenancy is at an end and that the requisite notices have been served.
[22] The landlord need not prove the grounds of eviction or that it is reasonable to evict.
[23] There are two routes by which a Short Scottish Secure Tenancy can be created, where any of the paragraphs of schedule 6 of the Act are satisfied.
[24] Firstly, the landlord may serve a notice which has the effect of making a Tenancy, which would otherwise have been a Scottish Secure Tenancy, into a Short Scottish Secure Tenancy in terms of Section 34 of the Housing (Scotland) Act 200. This would pertain where the Short Scottish Secure Tenancy is agreed from inception.
[25] The second route to a Short Scottish Secure Tenancy is by conversion from an existing Scottish Secure Tenancy.
[26] In this case an Anti-Social Behaviour Order had been granted on 5 October 2007 against the defender for an indefinite period. The pursuers had converted the Scottish Secure Tenancy to a Short Scottish Secure Tenancy by notice in terms of Section 35 of the 2001 Act on 5 March 2009. The pursuers were entitled to do so.
[27] Counsel analysed the provisions of Sections 34 and 35 in detail. Subsections (5) and (6) of Section 34 apply to a Scottish Secure Tenancy which "becomes" a Short Scottish Secure Tenancy by virtue of Section 35(4) as a result of the conversion process.
[28] Subsections (7) and (8) of Section 34 apply to tenancies converted to Short Scottish Secure Tenancies in terms of Section 35.
[29] Read together, Section 34(5), (6), (7) and (8) apply to those Short Scottish Secure Tenancies under Section 35 of the 2001 Act converted from Scottish Secure Tenancies.
[30] Counsel submitted that in contrast Section 34(1), (2), (3) and (4) do not apply to tenancies converted to Short Scottish Secure Tenancies in terms of Section 35. This is because Section 34(1), (2), (3) and (4) only apply to Short Scottish Secure Tenancies created of new in terms of Section 34.
[31] The distinction between the two forms of Short Scottish Secure Tenancies is important because Section 34(1) only applies to a new tenancy, meaning that a Short Scottish Secure Tenancy converted from a Scottish Secure Tenancy does not need to be for a minimum period of six months (Section 34(1)(b)) and the landlord does not require to serve a Notice (Section 34(1)(c)).
[32] Section 35 contains its own notice provision (Section 35(2)). A Section 35 Short Scottish Secure Tenancy does not require a minimum term of six months because the pre-existing tenancy would already have a term.
[33] If this is a correct interpretation, the term of a Short Scottish Secure Tenancy converted from a Short Scottish Secure Tenancy is not affected by the conversion process.
[34] Section 34 operates as the definition of what is a Short Scottish Secure Tenancy where one is created of new. However, one needs to read Section 34 through to Section 37 to understand the nature of a Short Scottish Secure Tenancy which depends on whether the tenancy is granted of new or whether the tenancy is converted from a Scottish Secure Tenancy.
[35] Reading these provisions as a whole, the process of conversion under Section 35 is effected by the service of a notice under Section 35(3). Under that provision there is no indication that the duration of the tenancy changes. Therefore, the existing duration must be unaffected.
[36] Whilst a notice served under Section 35 converts the tenancy from a Scottish Secure Tenancy to a Short Scottish Secure Tenancy the converted tenancy will retain its original ish. In this case, the ish is fortnightly which is not uncommon in this type of housing.
[37] At the ish the tenancy may continue by tacit relocation or by express agreement. in terms of Section 34(5) which also applies to a Short Scottish Secure Tenancy converted in terms of Section 35(4).
[38] A landlord is entitled to raise an action for recovery of possession in respect of a Short Scottish Secure Tenancy which has been converted from a Scottish Secure Tenancy as outlined in Section 36.
[39] In this case, under Clause 3 of the Scottish Secure Tenancy Agreement dated 7 April 2004, the parties agreed that the tenancy would commence on 12 April 2004, continue until 25 April 2004 and thereafter on a fortnightly basis. Accordingly, the first ish was 25 April 2004. The tenancy had thereafter continued fortnightly by tacit relocation.
[40] The pursuers argue that tacit relocation is not operating because of the conversion and that the court must make an order for recovery of possession in terms of Section 36(5)(b). The defender says that tacit relocation is operating irrespective of the conversion to a Short Scottish Secure Tenancy.
[41] At common law, to prevent a lease continuing, the landlord must serve a notice to quit. However, the landlord must do so by terminating the tenancy at one of its ish dates.
[42] In this case, a notice to quit was served but it was invalid because the notice did not purport to terminate the tenancy at an ish date.
[43] If tacit relocation is operating not all the requirements of Section 36(5) are met and accordingly the court cannot grant decree under that provision.
[44] In terms of Section 37 of the 2001 Act, the Short Scottish Secure Tenancy will convert back to a Scottish Secure Tenancy unless the landlord, in the period of twelve months following the creation of the tenancy, has served a notice on the tenant under Section 14(2) or 36(2) of the 2001 Act. For this reason, Short Scottish Secure Tenancies are sometimes referred to as probationary tenancies.
[45] In terms of Section 34(2)(b) if the defender is successful in these proceedings the Short Scottish Secure Tenancy will convert back to a Scottish Secure Tenancy with effect from the date upon which these proceedings are finally determined or upon the expiry of twelve months from the service of a notice in terms of Section 37(1)(b), whichever is the later.
[46] That said, in terms of Section 35, there appears to be nothing to prevent a landlord converting the Scottish Secure Tenancy to a further Short Scottish Secure Tenancy where the Anti-Social Behaviour Order is still in place.
[47] Returning to the provisions of Section 34(7) a landlord, upon conversion of a Scottish Secure Tenancy to a Short Scottish Secure Tenancy, must provide or ensure the provision of, such housing support services as it considers appropriate with a view to enabling the conversion of the tenancy to a Scottish Secure Tenancy by virtue of Section 37.
[48] It is unclear from the Act whether such services terminate at the ish date of the lease or when proceedings for recovery of possession are finally determined with an order terminating the tenancy on an appointed date.
[49] The ambiguity arises because if an order for recovery of possession is made by the court in terms of Section 36(5), the tenancy is terminated on a date appointed by the court (Section 36(6)(a)).
[50] If a tenancy is terminated by the service of the notice to quit, how can a tenancy still exist for the court to terminate? The answer is to be found by understanding the contract of tenancy and the statutory status the contract has. The tenancy must be considered to be continuing with the tenant entitled to remain in occupation until an order is granted under Section 36(5) notwithstanding the service of the notice to quit. Accordingly, a Short Scottish Secure Tenancy has both a contractual and a statutory basis. However, there is no doubt that Sections 36(5) and (6) are difficult to reconcile.
[51] In this case tacit relocation is still operating because the notice to quit is invalid. In terms of the original lease, the termination date is 25 April 2004 failing which fortnightly thereafter.
[52] Accordingly, the first ish was Sunday, 25 April 2004 and every second Sunday thereafter.
[53] The defender does not dispute the notice served upon her in terms of Section 35(3).
[54] The notice advised the tenant that the Scottish Secure Tenancy was being converted to a Short Scottish Secure Tenancy in terms of Section 35 of the 2001 Act. However, the notice incorrectly referred to the term of the Short Scottish Secure Tenancy as six months from 5 March 2009 to 5 September 2009.
[55] Insofar as the notice purported to change the term of the tenancy, that is something which the pursuers had no power to do. This would constitute a unilateral alteration of contract. In terms of Section 35, the term of the original tenancy is not affected by conversion. The original lease continues except as varied in terms of the 2001 Act.
[56] For that reason, the term of Short Scottish Secure Tenancy mentioned on the notice could simply be ignored.
[57] However, the pursuers, having purported to change the term, then proceeded to terminate the lease at the incorrect ish date, 5 September 2009.
[58] On the basis that the first ish date was 25 April 2004 and that lease continued every second Sunday thereafter, the notice to quit with effect from 5 September 2009 fell one day short of an ish day in terms of the original tenancy (Sunday 6th September 2009).
[59] The pursuers purported to terminate the lease with effect from 5 September 2009. The pursuers are not entitled to proceed under a defective Notice where the ish date is incorrect.
[60] I was referred to the longstanding common law rule that in order to be valid a notice to quit must take effect on an ish date of the tenancy. The landlord has no right to terminate the tenancy with effect from any other date.
[61] This is not an area where considerations of equity apply. Precision is what is called for.
[62] If the rules are not followed precisely, the notice is invalid.
[63] Here the pursuers had served an invalid notice not because they had made a miscalculation of the ish date from the original lease but because the pursuers had wrongly thought that the Short Scottish Secure Tenancy must run for a minimum period of six months in terms of Section 34 of the 2001 Act.
[64] The pursuers do not take issue with the points of law that (a) to be valid a notice to quit must take effect on an ish date in terms of the tenancy and (b) there is no room for equity. Precision is required. That being so, I simply record the cases referred to by counsel for the defender, Hamilton DC v Macguire 1983 SLT (Sh Ct) 76, James Grant & Co Ltd v Moran 1948 SLT (Sh Ct) 8, Anderson v Scott 1939 SLT (Sh Ct) 28, Macdonald v Cameron (1916) 32 Sh Ct Rep 261, Earl of March v Dowie (1754) Mor 13843, Urquhart v Hamilton 1996 GWD 37-1271, Signet Group plc v C & J Clark Retail Properties Ltd 1996 SC 444.
[65] Counsel for the defender concluded his submissions by saying that it does not matter if the pursuers are out by even one day because precision is required.
[66] It follows that the notice to quit served by the pursuers in this case was invalid. If that is correct, the tenancy is continuing by tacit relocation. As tacit relocation is operating in this case, the court cannot make an order for repossession.
[67] Accordingly, the pursuers' case is not soundly based in law and should be dismissed.
Submissions on behalf of the pursuers
[68] Counsel opened the submissions by indicating that he did not take issue with the two points of law outlined on behalf of the defender, namely, that to be valid, a notice to quit must take effect on an ish date in terms of the tenancy and that there is no room for equity. Precision is required.
[69] However, the issue here is whether, in terms of section 35 of the 2001 Act, a Short Scottish Secure Tenancy must be for a minimum term of six months. The pursuers say that it must.
[70] Counsel observed that it was an odd situation for the landlord to construe statutory provisions in favour of tenants in a manner which would provide for Scottish Secure Tenancies which become Short Scottish Secure Tenancies to be given a minimum duration of six months. Here the tenant is arguing that the ish is fortnightly.
[71] Counsel for the pursuers had two points to advance. He provided these in writing which I have included in what follows. The first was the interpretation of sections 34 and 35 of the 2001 Act.
[72] The second was the contractual position which must be that the lease has been varied with the ish being a minimum period of six months, in this case, 5 September 2009.
[73] There is little security of tenure under Short Scottish Secure Tenancy. This is the policy behind having the minimum six month term of a Short Scottish Secure Tenancy. A Short Scottish Secure Tenancy is precarious albeit that it must be for a minimum period of six months.
[74] The missive of let of 12 April 2004 granted a Scottish Secure Tenancy continues on a fortnightly basis until terminated. The section 35(3) notice bore to convert the term from 5 March to 5 September 2009. It was effective in law.
[75] If the defender had wished to challenge the conversion of the tenancy, she should have brought a summary application under section 35(5). She has chosen not to do so. Given her omission to do so, she cannot dispute the validity of the conversion itself in these proceedings.
[76] In relation to the effect of the conversion notice on the ish, the tenant has fewer rights than under a Scottish Secure Tenancy. For instance, the restrictions on termination provided by section 12 of the 2001 Act do not apply, and nor do the rights of succession provided by section 22. On the other hand, while there is no minimum term for a Scottish Secure Tenancy, section 34(1)(b) provides that a short tenancy "is for a term of not less than 6 months". On the face of the statute that is a partial compensation so as to counter-balance the tenant's more precarious position. His occupation may be more precarious, but it must at least be for that minimum term.
[78] Section 35(1) provides that on the service of a section 35(3) notice, a Scottish Secure Tenancy "becomes a short Scottish secure tenancy". The sole definition of a short tenancy is in section 34(1), which stipulates the minimum term of six months. It follows from the language of section 34(1) and 35(1) that a converted tenancy is by statutory definition one with a minimum term of six months. It is true that in the case of a converted tenancy that part of the definition provided by section 34(1)(c) (prior service of a section 34(4) notice) is necessarily inapplicable, but it does not follow that the reference to a short tenancy in section 35(1) does not import so much of the section 34(1) definition as is capable of application, which is chiefly the six-month minimum term.
[79] It is also relevant that within the same section which contains the definition, namely section 34, sub-section (7) refers to a short tenancy created under section 35 without any suggestion that it is anything different from a short tenancy as defined by section 34(1).
[80] Considerations other than the bare language of those provisions support the same conclusion. Firstly, it is important to note that this is an interpretation of the Act which favours the interests of tenants of converted tenancies, by guaranteeing a minimum term of six months.
[81] Secondly, had Parliament not intended a converted tenancy to benefit from the minimum term, that would entail the unfair result that in leases constituted as short tenancies from the outset the lack of, for example, section 12 and section 22 rights would be partly counter-balanced by the guaranteed minimum term, but that in short tenancies created by conversion, the tenants would lack those rights and to boot would lack the partial compensation of a minimum term. Accordingly, if the defender's construction was accepted, then two different classes of short tenancies would emerge, with converted tenancies where the original term was less than six months being a distinct second, less-protected, class. There is no hint in the legislation of any such intention, and every reason to presume that Parliament intended all short tenancies to bestow the same rights, including the definitively fundamental guaranteed minimum term.
[82] It is relevant in this regard that the presumption that legislation is to be interpreted so as to operate fairly is a fundamental principle, and that it is essential to fairness that arbitrary discrimination be avoided, as for instance the discrimination involved in concluding that one class of short tenancy is and another is not to benefit from a minimum term of occupation. I was referred to Bennion on Statutory Interpretation, 5th Ed, at page 795 for the proposition that the interpretation of ambiguous legislation which leads to injustice, should be avoided.
[83] These considerations support the indication from the language of sections 34(1) and 35(1) that a short tenancy created by conversion must have a term of not less than six months.
[84] Finally the defender has no interest to advance any such argument, because esto there was an error in the term stated in the section 35(3) notice (which is denied), it was an error in her favour extending the term of her contract from one fortnight to the next, to six months.
Response on behalf of the defender
[85] Counsel challenged the pursuers' suggestion that section 34(1) provided the definition of a Short Scottish Secure Tenancy. Section 34(1) provides for two routes for the creation of a Short Scottish Secure Tenancy.
[86] There is a distinction between the prerequisites of creating a tenancy which had not previously existed as opposed to the prerequisites involved in converting a Scottish Secure Tenancy to a Short Scottish Secure Tenancy.
[87] Section 34(6) outlines which provisions apply to both a Short Scottish Secure Tenancy and a Scottish Secure Tenancy.
[88] Section 34 is not a definition of a Short Scottish Secure Tenancy but rather a route to its creation.
[89] If it were correct that section 34 is the definition of a Short Scottish Secure Tenancy, one would have to disregard the terms of section 34(1)(c) in relation to the service of a notice by the prospective landlord.
[90] One would also have to ignore the provisions of section 34(1)(a) where a new Scottish Secure Tenancy could not be created unless the tenancy could have been a Scottish Secure Tenancy.
[91] The pursuers say that the definition of a Short Scottish Secure Tenancy is within section 34(1). However, that definition is divided into three parts, two of which cannot apply to Short Scottish Secure Tenancies converted in terms of section 35.
[92] A fundamental problem here arises because of the use of section 34(1) as a definition for the purposes of section 35.
[93] In saying this, counsel for the defender accepted that section 111, which construes a Short Scottish Secure Tenancy with reference to Section 34, sits uneasily with his argument. Counsel would have expected that the Short Scottish Secure Tenancy would be construed with reference to section 34 through to section 37.
[94] Whilst that is a difficulty, it is not as great as that faced by the pursuers. The pursuers say that it was the intention of the legislature for tenants under section 35 to have a minimum term of six months.
[95] If that was the intention of Parliament, why not say so in terms? Indeed, section 35(4) refers specifically to those subsections of section 34 which apply to a tenancy which becomes a Short Scottish Secure Tenancy. That section does not refer to section 34(1)(b). If it had been the intention of Parliament that section 34(1)(b) did apply upon conversion, Parliament would have included a provision to that effect.
[96] If there has been a conversion to a Short Scottish Secure Tenancy and back again in terms of section 37, counsel postulated what might happen to the term of the tenancy.
[97] If the term of the tenancy is continued by tacit relocation, that does not present a difficulty because the same term would apply throughout the process.
[98] However, if the pursuers are correct, there is a difficulty. The pursuers would have to maintain that the term reverts to the position prior to the conversion of the Scottish Secure Tenancy to a Short Scottish Secure Tenancy.
[99] Put shortly, the 2001 Act does not dictate that a Short Scottish Secure Tenancy must be for a minimum of six months irrespective of what the parties had agreed in relation to the earlier Scottish Secure Tenancy.
[100] On the contrary, it would be necessary for the parties to agree the term as one of the preconditions for the creation of a tenancy.
[101] It is not unfair to interpret the legislation in this way. The creation of a Short Scottish Secure Tenancy might imply that there is an improving situation insofar as the tenant's behaviour is concerned.
[102] By contrast, where a conversion from a Scottish Secure Tenancy to a Short Scottish Secure Tenancy takes place, this could be interpreted as a deteriorating situation. In that scenario a landlord might wish to evict the tenant as soon as possible.
[103] If conversion had taken place and the provisions are interpreted as the defender suggests, it would be possible to remove the tenant quickly subject to two requirements which act as a safeguard. The first is that the landlord has to provide support to the tenant which could take some time. The second is that the landlord requires to serve a notice under section 36(2) which requires a minimum period of two months (Section 36(3)(b)(i)). Accordingly, whilst the landlord could act quickly, the tenant would not be removed immediately following conversion to a Short Scottish Secure Tenancy.
[104] In relation to the pursuers' argument in respect of personal bar, this would require an inconsistency on the part of the tenant.
[105] Mere inaction in relation to the conversion notice and in relation to the notice served under section 36(2) does not constitute personal bar.
[106] The first notice achieved its intended purpose, namely, to convert the tenancy to a Short Scottish Secure Tenancy.
[107] The second notice did not provide grounds by which the defender could have raised a summary application.
[108] In all the circumstances, the pursuers cannot argue personal bar in this situation.
Decision
[109] During the hearing both parties criticised the terminology of the statute. They did so with reason. When read as a whole, it is not easy to read a coherent interpretation of Sections 34 through to 37 of the Housing (Scotland) Act 2001.
[110] The starting point must be the interpretation of a Short Scottish Secure Tenancy. In terms of section 111 of the Housing (Scotland) Act 2001, a Short Scottish Secure Tenancy is to be construed in accordance with section 34.
[111] In terms of section 34(1) a tenancy of a house is a Short Scottish Secure Tenancy if (a) it would have been a Scottish Secure Tenancy but for the section, (b) it is for a term of not less than six months, and (c) before its creation, the prospective landlord serves on the prospective tenant a notice under subsection (4).
[112] Section 35 relates to the conversion to a Short Scottish Secure Tenancy. Section 35(1) says that a Scottish Secure Tenancy becomes a Short Scottish Secure Tenancy immediately on the landlord serving on the tenant a notice under subsection (3).
[113] Section 35 is silent in relation to the ish of the original Scottish Secure Tenancy upon conversion to a Short Scottish Secure Tenancy.
[114] In my opinion this is because, upon conversion to a Short Scottish Secure Tenancy, the ish is varied in terms of section 34(1)(b) to a term of not less than six months. This would apply irrespective of the term of the original lease.
[115] I say this for the following reasons.
[116] Firstly, the definition, in terms of section 111, makes it clear that a Short Scottish Secure Tenancy is to be construed in accordance with section 34. The construction which I have placed upon the Short Scottish Secure Tenancy complies with this imperative.
[117] Secondly, section 34(7) provides that where a tenancy is a Short Scottish Secure Tenancy by virtue of section 35 (the conversion process) the landlord must provide, or ensure provision of, such housing support services as it considers appropriate with a view to enabling the conversion of the tenancy to a Scottish Secure Tenancy. Put shortly, section 34(7) is an enabling provision so as to provide the tenant with support in the hope or anticipation that at the conclusion of a period of not less than six months, the tenancy will revert to a Scottish Secure Tenancy.
[118] The intention of these provisions is to provide a period of support for the tenant with the proviso that the landlord may recover possession of the property upon the expiry of not less than six months after conversion.
[119] Such a period enables a landlord to put in place support services for a certain albeit limited time.
[120] If I am wrong and the ish is not altered in the manner which I have outlined, the landlord could attempt to terminate the Short Scottish Secure Tenancy at one of the fortnightly ish dates. The landlord would, of course, require to comply with the provisions of section 36(2) and (3) by providing not less than two months notice. Nevertheless, the probationary period during which support services are to be provided could be of limited duration, quite possibly as little as two months.
[121] On a plain reading of sections 34 through to 37 together with section 111 of the Housing (Scotland) Act 2001, Parliament made provision to enable a landlord in certain circumstances to serve a notice converting a Scottish Secure Tenancy into a Short Scottish Secure Tenancy for a minimum period of six months. The grounds for doing so are outlined in Schedule 6.
[122] During the period of the Short Scottish Secure Tenancy appropriate support should be provided to the tenant. However, although the landlord may be obliged to ensure the provision of appropriate support services, the landlord is better placed to recover possession of the property because he does not have to show, in respect of a Short Scottish Secure Tenancy, that it is reasonable for him to recover possession in terms of section 16 of the Housing (Scotland) Act 2001. The tenant's occupation of the property is perilous with the landlord being able to recover possession with comparative ease.
[123] Finally while there is no doubt that the provisions of sections 34 through to 37 of the 2001 Act are difficult to reconcile and the meaning opaque, an interpretation which would provide two differing classes of Short Scottish Secure Tenancy should be resisted. Had Parliament intended a created Short Scottish Secure Tenancy to have a minimum term of six months as opposed to a Short Scottish Secure Tenancy converted from a Scottish Secure Tenancy, Parliament would have expressed its intention in such terms. Whilst the defender has advanced an argument exposing ambiguity within the legislation, on a plain reading it seems to me that a created Short Scottish Secure Tenancy and a Short Scottish Secure Tenancy converted from a Scottish Secure Tenancy, are both intended to be for a minimum term of six months.
[124] I recognise that where a Short Scottish Secure Tenancy reverts to a Scottish Secure Tenancy in terms of section 37, there is a further argument in relation to the term of the lease. Does the term of the subsequent Scottish Secure Tenancy revert to the term agreed in the initial agreement, prior to conversion to a Short Scottish Secure Tenancy? It seems to me that it does but the Act makes no such provision. Equally, however, the Act does not say that the term of the Short Scottish Secure Tenancy (which must be for a minimum period of six months) continues when the Short Scottish Secure Tenancy is superseded by a Scottish Secure Tenancy.
[125] By section 37(1) a Short Scottish Secure Tenancy "becomes" a Scottish Secure Tenancy in certain circumstances. The use of the word "becomes" (here and elsewhere) is unhelpful if the provision is intended to mean that the tenancy reverts to the pre-existing Scottish Secure Tenancy. If, on the other hand, a new Scottish Secure Tenancy is what Parliament intended, ancillary provisions should have clarified issues such as the term of the new tenancy.
[126] Read as a whole, it seems to me that what Parliament intended was that the obligations on both parties under a Scottish Secure Tenancy are interrupted by a Short Scottish Secure Tenancy in certain circumstances. This is informally referred to as a probationary period at the conclusion of which the property is recovered by the landlord or reverts to a Scottish Secure Tenancy.
[127] I now turn to deal with the terms of section 36(5) and (6). Section 36(5) outlines where a court must make an order for recovery of possession. The court must do so if it appears that (a) the tenancy has reached the ish referred to in section 34(5), (b) tacit relocation is not operating; (c) there is no further contractual tenancy (whether or not a Short Scottish Secure Tenancy) is in existence; and (d) section 36(2) has been complied with, relating to the service of a notice of litigation.
[128] The first point to observe is that section 36(5)(a) refers to the ish in section 34(5). Section 34(5) provides for the ish of the Short Scottish Secure Tenancy to continue either by tacit relocation or by express agreement. When read with section 34(1)(b) this means that the term of the lease must not be for less than six months and may continue by tacit relocation (presumably six monthly or whatever greater term is specified) or by express agreement.
[129] Assuming the landlord has served the appropriate notice in terms of section 36(2) and that the parties have not entered into a further contractual tenancy, the court must, in terms of section 36(6) appoint a date for the recovery of possession which has the effect of terminating the tenancy and giving the landlord the right to recover possession of the house at that date.
[130] It is difficult to reconcile these provisions.
[131] It seems to me that sections 36(5) and (6) must be interpreted so as to allow the tenancy to continue where proceedings have been raised to recover possession in terms of Section 36(1). Accordingly, despite the notice having been served by the landlord and the ish expiring, the tenancy agreement continues until terminated on a date appointed by the court in terms of section 36(6). Until then both parties are obliged to comply with their statutory and contractual obligations.
[132] In conclusion, it follows that on the basis of the argument I have heard thus far, the pursuers' case is soundly based in law. I had acceded to the joint request by counsel to consider these arguments separately from others.
Future procedure
[133] Accordingly, I shall fix a further continued First Hearing to determine future procedure. The continued First Hearing will not hear further argument but I would expect to be addressed in relation to further procedure, namely, whether a continued First Hearing for further legal argument or proof is proposed. If, as I understand it, the second line of argument for the defender is that the pursuers are not entitled to raise proceedings because they failed to provide support to the defender under section 34(7) of the Housing (Scotland) Act 2001, it might be appropriate to assign a proof unless the pursuers concede that no housing support services were provided. If the pursuers argue that no services were provided because none were appropriate, I may have to hear evidence in that respect also. I will also require a realistic estimate of the likely duration of whichever hearing and details of the availability of counsel. I raise these issues in the hope that they can be considered in advance.
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