SHERIFFDOM OF GRAMPIAN HIGHLAND AND ISLANDS AT BANFF

Note

by

Sheriff Philip Mann

In causa

Aberdeenshire Council, St Leonard's, Sandyhill Road, Banff, AB45 1BH

Against

Mark Shaw, 20 Parnassus Gardens, Fyvie, Aberdeenshire, AB53 8QD

Act: Miss Smith

Banff 24.10.2011

Alt: Party

1. Introduction

1.1 This is a summary cause action for recovery of possession of heritable property. It concerns a Short Scottish Secure Tenancy created under Section 34 of the Housing (Scotland) Act 2001 ("the 2001 Act"), in respect of which the Pursuers had served a Notice in terms of Section 36(2) thereof ("Section 36(2) Notice").

1.2 The case called before me on 24 October 2011 when Miss Smith appeared for the Pursuers. Mr Shaw appeared as a party litigant. Miss Smith initially moved for decree with expenses. This motion was opposed by Mr Shaw. As will become apparent, I dismissed the cause on Miss Smith's further motion. I offered to write this note as Miss Smith perceived there to be a need for clarification as to whether or not a Notice to Quit requires to be served in addition to a section 36(2) Notice as a prerequisite to a decree being granted in terms of section 36(5) of the 2001 Act.

2. Submissions for the Pursuer and Disposal of the Cause

2.1 Miss Smith initially maintained that I was obliged to grant decree in terms of section 36(5) of the 2001 Act, which is in the following terms:

"(5) The court must make an order for recovery of possession if it appears to the court that-

(a) the tenancy has reached the ish referred to in section 34(5),

(b) tacit relocation is not operating,

(c) no further contractual tenancy (whether or not a Short Scottish Secure Tenancy) is in existence, and

(d) subsection (2) has been complied with."

For present purposes there was no dispute that paragraphs (a), (c) and (d) of Section 36(5) were satisfied. The sole matter for determination was whether or not the terms of paragraph (b) were met.

2.2 Miss Smith pointed to the Section 36(2) Notice. She maintained that this fulfilled the dual function of being a notice in terms of Section 36(2) of the 2001 Act and a notice terminating the tenancy to the effect of preventing the operation of tacit relocation. She accepted that no separate Notice to Quit had been served on the Defender. She maintained that this was not required, having regard to the terms of the Section 36(2) Notice. I will come back to this later. Miss Smith referred for support to the case of South Lanarkshire Council v McKenna 2010 Housing Law Review 36, which was the only case she could find concerning section 36 of the 2001 Act. Likewise, I will come back to this.

2.3 I indicated to Miss Smith that I was inclined to the view that tacit relocation could only be prevented by service of a Notice to Quit and, if that were the case, the cause would fall to be dismissed because in the absence of such a notice there could be no compliance with Section 36(5)(b) of the 2001 Act. I allowed her a short adjournment to consider her position.

2.4 On resumption of the hearing Miss Smith remained adamant that I was obliged to grant the order sought by her on the basis that no separate Notice to Quit was required. However, when I pointed out to her the terms of Section 6 of the Tenancy Agreement, dealing with "Ending the Tenancy", she immediately moved that the cause be dismissed with no expenses due to or by either party.

2.5 Section 6.2 of the Tenancy Agreement sets out that one method of ending the tenancy would be a Notice to Quit served by the Landlord on the Tenant. It provides, inter alia, "This notice will only have the effect of preventing the tenancy under this Agreement from automatically renewing". Section 6.4 of the Tenancy Agreement deals with applications to the Court in terms of Section 36 of the 2001 Act. It provides, inter alia, "We may ask for such an order under Section 36 of the Housing (Scotland) Act 2001. Before we do so, we will first send you a written notice giving you the earliest date from which we will start court proceedings. We will also send you a notice to quit as described in paragraph 6.2 above (original emphasis)"

2.6 There was no opposition from the Defender to Miss Smith's ultimate motion and I therefore dismissed the cause with no expenses due to or by either party.

3. Whether a Separate Notice to Quit is Required

3.1 In my view, there can be no doubt that in a case of this kind the Pursuer must not only serve a Notice of Proceedings For Recovery of Possession in terms of section 36(2) of the 2001 Act but also serve a separate Notice to Quit in order to bring the tenancy to an end at the ish date and prevent the operation of tacit relocation.

3.2 The terms of Section 36(5) of the 2001 Act are quite clear. If all that the Pursuers had to do was comply with Section 36(2) there would be absolutely no need for Section 36(5)(b). The only way to prevent the operation of tacit relocation that I am aware of, so far as a Landlord is concerned, is the service by him of a Notice to Quit at common law.

3.3 On a common sense reading of the Section 36(2) notice it cannot operate as a Notice to Quit. It is merely a notice of an intention to apply to the sheriff for an Order for Possession. There is no certainty that such an application will be made. In effect, it is a notice that court proceedings might be raised at some indeterminate time within a specified period. I cannot see how that can be interpreted as a Notice to Quit preventing the operation of tacit relocation after the ish date. "Note 2 to the Tenant" in the Section 36(2) Notice confirms in terms that it is not a Notice to Quit. A Notice to Quit would need to specify the date by which the tenant is required to vacate the property, which a Section 36(2) notice clearly does not do.

3.4 The Tenancy Agreement in this case, which was presumably drawn up by the Pursuers, clearly and quite properly acknowledges the need for a separate Notice to Quit.

3.5 The case of South Lanarkshire Council v McKenna is of no assistance to the Pursuers. It is abundantly clear that the subject of discussion in that case was a Notice to Quit served at common law and whether or not, in the particular circumstances of that case, that was a valid notice preventing the operation of tacit relocation. I can see that Miss Smith might have thought that paragraph 128 of Sheriff McCormick's judgement in that case lent support to her argument. There, Sheriff McCormick says "Assuming the landlord has served the appropriate notice in terms of s36(2) and that the parties have not entered into a further contractual tenancy, the court must, in terms of s36(6) appoint a date for the recovery of possession ......" However, if one reads that paragraph in the context of the judgement as a whole it is perfectly clear that Sheriff McCormick was referring to the service of the Section 36(2) Notice as being additional to the service of a Notice to Quit at common law.

3.6 A Short Scottish Secure Tenancy under the 2001 Act can be seen as being the "Local Authority" equivalent of a "private" Short Assured Tenancy under the Housing (Scotland) Act 1988 ("the 1988 Act"). The terms of Section 33 of the 1988 Act are substantially in the same terms as Section 36(5) of the 2001 Act. So far as I am aware there has never been any doubt that in cases under Section 33 of the 1988 Act a separate Notice to Quit is required.

3.7 The only element of doubt in relation to proceedings under the 2001 Act is introduced by "Note 7 to Tenant" on the Section 36(2) Notice. This says:

"Remember before you must leave your home, the Landlord must have done 2 things:

1. Served on you this notice: and

2. Obtained a Court Order"

Miss Smith relied on this for her proposition that, in general, there was no need for a separate Notice to Quit in proceedings under the 2001 Act, although she had, of course, bowed to the inevitable when faced with the actual terms of the Tenancy Agreement. It is true that "Note 7 to Tenant" can be contrasted with "Note 6 to Tenant" on the form AT6, which is the equivalent notice under the 1988 Act in relation to an Assured Tenancy under that Act (which is also relevant in certain circumstances to a Short Assured Tenancy under that Act). The latter specifies the same two requirements as the former but also specifies a third requirement, namely the service of a Notice to Quit. In my view, no reliance can properly be placed on this difference between the two notices. The terms of the Section 36(2) Notice are prescribed by The Short Scottish Secure Tenancies (Proceedings for Possession) Regulations 2002 (SSI 2002/319). It seems to me that these terms have been badly drafted by the Scottish Ministers and do not accurately reflect the true legal position as set out in Section 36(5) of the 2001 Act. The clear terms of the Act must prevail over anything that can only be inferred from the Regulations. If I am correct in the views that I have expressed here then it would be helpful if the Scottish Ministers were to consider amending the form of the Notice prescribed by the 2002 Regulations to make it clear that a separate Notice to Quit must have been served before the Court is obliged to make an order for repossession.