A394/09 Malcolm Souter v Mark McAuley
Act: Fraser
Alt: Ms. Robertson
Dundee, 31st. March, 2010 The sheriff, having resumed consideration of the cause, finds the following facts admitted or proved:-
1. The pursuer is Malcolm Souter (33), who presently resides at 2 Thurter Neuk, Dundee, though he gives the address 5F Abbotsford Street, Dundee as his address, this being the address of the subjects of this dispute. He is a student of architecture.
2. The defender is Mark John Francis McAuley (39) who presently resides at 5F Abbotsford Street, Dundee. He has, since October, 2009 been a manufacturer of confectionery,. His turnover for the first six months appeared to be of the order of £3,000 to £3,500 but he did not know what profit or loss he had made during that period. So far as the payment of rent was concerned, he was in receipt of housing benefits with a requirement for him to pay only £3.25 per week.
3. The parties formerly cohabited at 5F Abbotsford Street, Dundee and are joint tenants thereof. They were in a relationship for approximately six years. They have not entered into a civil partnership. Their relationship has broken down and there is no prospect of a reconciliation. Each seeks to have the other removed from the joint tenancy and become the sole tenant of the property.
4. Both parties have been resident in Scotland for a period in excess of twelve months prior to the commencement of these proceedings and had resided in Dundee for more than forty days prior to the commencement similarly. There are no proceedings in any other court relating to the breakdown of their relationship with the exception of A389/09 in Dundee Sheriff Court which was an action for interdict at the instance of the defender in which interim interdict was granted on 13th. August, 2009, with a power of arrest for a period of six months attached thereto. It is a matter of admission that, after the interim interdict had been granted, but prior to intimation being given, the pursuer assaulted the defender, that the incident was reported to the police and that the pursuer pled guilty to a charge of assault and was fined £200 on 23rd. October, 2009. There is, accordingly, no reason why this court should not entertain this cause. The proper basis for jurisdiction, however, is that this dispute relates to a tenancy of a heritable property located within this court's territorial jurisdiction.
5. Since 22nd. August, 2009, the pursuer has not been residing at the property at 5F Abbotsford Street, Dundee. However, his cats continue to reside there and he attends there regularly to tend to them and to collect mail. He does not currently make any other use of the premises. He does, however, continue to pay 50% of the rent due for the property and his belongings remain there.
6. The pursuer obtained the tenancy of the flat at 5F Abbotsford Street in or about June, 2008 in his sole name from Dundee City Council who are the landlords and the heritable proprietors of the property. The original tenancy agreement, which is production 5/1/2, was concluded on 4th. June, 2008. The property comprises a one bedroomed flat. With effect from 1st. December, 2008, the tenancy was transferred with the consent of the local authority so that both parties were joint tenants. In terms of the tenancy agreement, each of them is responsible for meeting all of the tenants' obligations. The agreement was formally concluded on 5th. December, 2008.
7. The relationship of the parties had broken down irretrievably by February, 2009. It had always been tempestuous and was characterised by verbal provocation from the defender directed towards the pursuer who responded with physical violence.
8. The defender pled guilty on 8th. January, 2010 to a contravention of Section 127(1)(a) of the Communications Act, 2003 in relation to texts messages sent by him to the pursuer. He was admonished and dismissed.
9. For a time, the parties, though no longer cohabiting, continued to reside at 5F Abbotsford Street. This was not a successful or workable arrangement.
10. The tenancy between the parties and Dundee City Council pertaining to 5F Abbotsford Street, Dundee, is a Scottish secure tenancy.
11. There are no children normally residing within the property but the defender has a daughter with whom he has regular contact including residential contact which he normally exercised at his parents' home in Kirriemuir but which from time to time was exercised at 5F Abbotsford Street. There is no technical or practical reason why contact could not be exercised there in the future were he to be awarded the tenancy.
12. Neither party has any alternative accommodation at which they could reside. The pursuer is presently residing in a flat owned by Eric Govan which he wishes to occupy for his own purposes. The pursuer is residing there rent free. This is a temporary arrangement pending the conclusion of these proceedings.
13. The pursuer attends college in Dundee. He also works part time as a barman in Dundee and has a net income from this employment of approximately £250 per month.
14. The defender's fledgling confectionery business is located in Hilltown, Dundee.
15. The property comprises a living room, kitchen, bathroom and one bedroom.
16. The rental for the property is £48.68 per week for 48 weeks per annum.
17. Equivalent property available in Dundee for private rent would be at a rental of approximately £350 per month.
18. The pursuer has been a tenant of Dundee City Council for a period of approximately ten years. The defender has not previously been a tenant of Dundee City Council though previously was the tenant of property let by a private landlord.
19. The defender did not make any use of the flat for the conduct of his business.
20. The pursuer expected to be permitted to continue to reside in Mr. Govan's flat until he was able to find alternative accommodation. If that property was available to rent on the open market with vacant possession it would be expected to produce rental income of £500 - £600 per month. While the defender resided there, as he did for a period prior to moving into 5F Abbotsford Street with the pursuer, he claimed housing benefits of approximately £320 per month and paid that amount to Mr. Govan, notwithstanding that there was no true formal tenancy agreement. It appears that a lease was entered into solely for the purpose of the defender claiming housing benefits which he paid to Mr. Govan. Mr. Govan also paid council tax in relation to the property and paid all utilities bills. While the defender was residing there, there was some damage caused to the property apparently in the course of some physical struggle between the parties, which damage was repaired at Mr. Govan's expense.
21. Mr. Govan had once seen the defender with a black eye which the defender claimed had been caused by the pursuer.
22. The neighbour who lived across the stair landing from the parties when they were together, Jennifer Cochrane, could, from time to time, hear noises from their flat which sounded like people fighting and arguing. In particular, she had heard the pursuer shouting at the defender to get out of the flat. There were occasions when the police attended. She was aware that the pursuer had moved out but that he came back to feed his cats when the defender was absent from the property at which times he was noisy and banged doors. The defender, by contrast, was quiet and friendly. She would prefer him to the pursuer as her neighbour.
23. The defender had been sequestrated in about August, 2007 at a time which coincided with the breakdown of his marriage.
Finds in fact and law:-
1. The action being related to a tenancy of a property located within the territorial jurisdiction of this court, this court has jurisdiction in the cause.
2. The relationship between the parties having been sexual in nature, they are entitled, having regard to the provisions of Section 18(1) of the Matrimonial Homes (Family Protection)(Scotland) Act, 1981, to be regarded as a cohabiting couple.
3. Given their legal entitlement to be regarded as a cohabiting couple, the provisions of section 18(3) which, in turn, applies the provisions of section 13, apply to them.
4. In terms of section 13(9), given that the parties are joint tenants of the property at 5F Abbotsford Street, each of them are entitled to make application to the court for an order vesting the tenancy in them.
5. None of the circumstances set out in section 13(7) apply to the tenancy in the present case.
6. Given that the parties were a cohabiting couple and are joint tenants of the foresaid property, in determining in which of them the tenancy should be vested the court requires to consider all the circumstances of the case, including, without prejudice to the foregoing generality:-
(a) the suitability of the party to become the tenant;
(b) the capacity of the party to perform the obligations of the tenancy;
(c) the conduct of the parties in relation to each other and otherwise;
(d) the respective needs and financial resources of the parties;
(e) the needs of any child of the family;
(f) the extent (if any) to which -
(i) the subjects of lease; and
(ii).............................
are used in connection with a trade, business or profession of either party; and
(g) whether either party has made any offer of alternative accommodation to the other.
7. In relation to suitability to become the tenant, there is little to choose between the parties; the pursuer can demonstrate a history of ten years as a council tenant without ever having been evicted and with any difficulty in relation to rent arrears having been resolved; he is, however, noisy and a disturbance to his neighbours; the defender has been rendered bankrupt and has abused the housing benefits system, but is a quiet and friendly neighbour.
8. In terms of capacity to perform the obligations of the tenancy, the defender currently appears to be in a poorer financial position than the pursuer to meet the rent which is the principal obligation in any tenancy; the pursuer, on the other hand, has behaved in a much more anti-social way by shouting and banging doors and being heard to make threats of violence to the defender, thus disturbing his neighbours, who have also been disturbed by visits to the property by the police; both parties have caused damage to the property and to Mr. Govan's flat while fighting with each other.
9. In relation to the conduct of the parties towards each other, again there is little to choose. The defender was verbally abusive and provocative to the pursuer. The pursuer responded with physical violence. Both caused damage to the property. The pursuer has been convicted of assault and there is an interim interdict against him to prevent him further molesting the defender; the defender has a conviction for sending abusive texts to the pursuer. Neither has any respect for the other and not much respect for the law.
10. Both parties need a place in which to reside. Both have limited financial resources. Neither have any capital. The pursuer is a student who works part time in a bar. The defender is in the throes of trying to establish a confectionery manufacturing business. In the recent past, the pursuer has been less dependent on benefits than the defender in relation to payment of rent.
11. There is no child of the parties but the defender has an eight year old daughter with whom he has contact on a regular alternate weekend basis which can be and historically has been exercised at the home of his parents in Kirriemuir.
12. The subjects of lease are not used for any purpose related to either party's trade, business or profession.
13. Neither party is in a position to make any offer to the other of alternative accommodation.
14. There is no other circumstance of any significance in relation to the resolution of the competition for the tenancy.
Finds in law:-
1. Both parties being joint tenants and having been a cohabiting couple are entitled to ask the court to make an order vesting the tenancy in their sole name.
2. Having regard to all the circumstances of the case, the court considers that the tenancy should be vested in the defender.
Accordingly, repels the pleas-in-law for the pursuer; sustains the first and second pleas-in-law for the defender; grants an order vesting the tenancy of 5F Abbotsford Street, Dundee in the sole name of the defender; for the avoidance of doubt, there being no application for and no evidence in relation to any award of, compensation for the pursuer's loss of interest in the tenancy, makes no award of compensation; appoints parties to be heard on all questions of expenses arising in the cause and assigns as a diet therefor.
NOTE
Statutes referred to:
1. Matrimonial Homes (Family Protection)(Scotland) Act, 1981, as amended, esp. ss. 3(3) 13(9) and (11) and 18.
Section 18:-
"(1) If a man and a woman are living with each other as if they were man and wife or two persons of the same sex are living together as if they were civil partners (in either case "a cohabiting couple") in a house which, apart from the provisions of this section-
(a) one of them ("an entitled partner") is entitled, or permitted by a third party, to occupy; and
(b) the other ("a non-entitled partner") is not so entitled or permitted to occupy,
the court may, on the application of the non-entitled partner, if it appears that the entitled partner and the non-entitled partner are a cohabiting couple in that house, grant occupancy rights therein to the applicant for such period, not exceeding six months, as the court may specify.
(2).........................
(3) While an order granting an application under subsection (1) above or an extension of such an order is in force, or where both partners of a cohabiting couple are entitled, or permitted by a third party, to occupy the house where they are cohabiting, the following provisions of this Act shall, subject to any necessary modifications-
(a) apply to the cohabiting couple as they apply to parties to a marriage; and
(b) have effect in relation to any child residing with the cohabiting couple as they have effect in relation to a child of the family,
section 2;
section 3, except subsection (1)(a);
section 4;
in section 5(1), the words from the beginning to "Act" where it first occurs;
sections 13 and 14;
section 15, except the words in subsection (2) from "and such power of arrest" to the end; and
section 22
and any reference in these provisions to a matrimonial home shall be construed as reference to a house."
Section 13(9)
" Where both spouses are joint or common tenants of a matrimonial home, the court may, on the application of one of the spouses, make an order vesting the tenancy in that spouse solely, and providing, subject to subsection (11) below, for the payment by the applicant to the other spouse of such compensation as seems just and reasonable in the circumstances of such case."
(11) Where the matrimonial home is a Scottish secure tenancy within the meaning of the Housing (Scotland) Act 2001 (asp.10) no account shall be taken, in assessing the amount of any compensation to be awarded under subsection (1) or (9) above, of the loss, by virtue of the transfer of the tenancy of the home, of the right to purchase the home under Part III of the Housing (Scotland) Act, 1987 (c.26)"
Section 3(3)
"The court shall grant an application under subsection (1)(a) above if it appears to the court that the application relates to a matrimonial home; and, on an application under any of paragraphs (b) to (e) of subsection (1) or under subsection (2) above, the court may make such order relating to the application as appears to it to be just and reasonable having regard to all the circumstances of the case including-
(a) the conduct of the spouses in relation to each other and otherwise;
(b) the respective needs and financial resources of the spouses;
(c) the needs of any child of the family;
(d) the extent (if any) to which
(i) the matrimonial home;
(ii) in relation only to an order under subsection (2) above, any item of furniture and
plenishings referred to in that subsection,
is used in connection with a trade, business or profession of either spouse; and
(e) whether the entitled spouse offers or has offered to make available to the non-entitled spouse any suitable alternative accommodation."
2. Civil Partnership Act, 2004, esp. section 112 (10) and (12)
"(10) Where both civil partners are joint or common tenants of a family home, the court may, on the application of one of the civil partners, make an order vesting the tenancy in that civil partner solely and providing, subject to subsection (12), for the payment by the applicant to the other partner of such compensation as seems just and reasonable in the circumstances of the case.
(12) Where the family home is a Scottish secure tenancy within the meaning of the Housing (Scotland) Act 2001 (asp.10), no account is to be taken, in assessing the amount of any compensation to be awarded under subsection (1) or (10), of the loss, by virtue of the transfer of the tenancy of the home, of a right to purchase the home under Part 3 of the Housing (Scotland) Act 1987 (c26)"
Authority referred to:
1. McGowan v McGowan 1986 SLT 112
Note:
[1] In this ordinary action, both parties craved that an order be made under section 13(9) of the Matrimonial Homes (Family Protection)(Scotland) Act, 1981, which has to be read along with the provisions of section 18(3) of said Act, for an order vesting in them the tenancy of property at 5F Abbotsford Street, Dundee of which they are currently joint tenants, following upon the breakdown of their cohabitation which had never been regularised by civil partnership. For the avoidance of doubt, I have set out above the relevant provisions of the Civil Partnership Act, 2004 to demonstrate that parties to a civil partnership have the same statutory right to determination of the vesting of a tenancy as have a married couple, but the provisions in relation to cohabiting couples of whatever sexual orientation are to be found in the Matrimonial Homes Act, as amended. I heard evidence from the pursuer and from his witness, Eric Govan, and from the defender and his witness, Jennifer Cochrane. Mrs. Cochrane was entirely credible and reliable. I was not favourably impressed by the pursuer who, at the very least, had tendencies both to exaggerate and to confabulate. Both the defender and Mr. Govan were less than wholly forthcoming about the circumstances in which the defender claimed housing benefits while living in Mr. Govan's flat and paid this to Mr. Govan and thus gave me some cause for concern about regarding either of them as wholly credible.
[2] It would appear that the parties' relationship was always volatile and had been punctuated by aggression and violence between them. It was very clear that there was no prospect of a reconciliation and that it would be an impossible situation to expect parties to reside together in the one bedroom flat which was the subject of this litigation.
[3] The pursuer was a 33 year old student of architecture at Dundee College and part-time barman. The defender was in the course of trying to establish a business manufacturing confectionery. Neither had any money to speak of and in terms of their ability to pay rent, there was little to choose between them. It appeared that the pursuer had a ten year record as a tenant of Dundee City Council and it was certainly with him that they entered into a tenancy agreement in June, 2008. The defender had no history, prior to December, 2008, as a council tenant. The pursuer was currently paying his half of the rent, notwithstanding that he was not residing at the property, without the benefit of any public support, whereas the defender had a substantial contribution towards his rent met by housing benefits.
[4] By dint of section 18(3)(a), section 3 and, in particular, subsection (3) thereof applies to such a cohabiting couple as it applies to parties to a marriage. Account therefore has to be taken of all the circumstances of the case including the criteria there listed. So far as the conduct of the parties towards each other is concerned, again there was little to choose. The defender admitted that he verbally provoked trouble and the pursuer conceded that he was easily provoked and had resorted on occasion to violence which had on one relatively recent occasion led to his conviction for assault. The defender had also been convicted of contravening the Communications Act, 2003, section 127(1)(a) by sending abusive texts to the pursuer. Eric Govan, an optometrist who knew them both, said that there was little to choose between them and explained that they had caused damage to his flat for which each blamed the other and he had had to meet the costs of repair himself. Mrs. Cochrane, who lived in the same close and on the same landing as the parties when they resided together at 5F Abbotsford Street said that when they were together there was often the sound of fighting and she would hear the pursuer's voice which she described as loud and distinctive shouting at the defender to get out and threatening him with violence. On one occasion she had heard him threaten to use a knife. She described the defender as quiet and friendly. It was very clear that she would prefer him as her neighbour, saying that it had been quite a disturbing time when the two of them were together and that the pursuer was still noisy when he came to the flat when the defender was away for the purpose of feeding his cats, having a tendency to bang doors. On the other hand, the defender admitted damaging a door at the property which he had put his foot through when the pursuer would not open it to him. So far as concerned their respective needs and financial resources, both needed somewhere to live and neither had any money. There was some attempt by the pursuer to suggest that there were three other locations at which the defender could reside, including at his parents' home at Kirriemuir, but no evidence was led to the effect that any of the occupiers of any of these locations was prepared to accommodate the defender and, as he put it, his work was in Dundee and he did not have the means to travel daily from Kirriemuir at a cost of about £30 per week. It appeared that the pursuer was meeting the rent from his income from part time employment whereas the defender was substantially dependent upon benefits. There was no child of the "family" but the defender does have a daughter with whom he has regular contact which from time to time was exercised at the flat. She lives with her mother in Dundee and goes to school in Dundee but normally contact took place on alternate weekends at the defender's parents' home in Kirriemuir. It was not suggested that that latter arrangement could not continue. There was no suggestion that the house or any of its contents was particularly required by either party in connection with a trade, business or profession, and neither had made any offer to the other to provide them with alternative accommodation.
[5] Mr. Fraser, for the pursuer, acknowledged that he had to persuade the court that the pursuer was the better choice when it came to the court having regard to who was more likely to be suitable as a tenant and who had the greater capacity to perform the obligations of the tenancy. The court also had to have regard to "all the circumstances of the case" including the criteria set out in section 3(3). It was, in effect, therefore a competition between the parties to demonstrate to the court, considering historical factors, which of them was more likely to be the better sole tenant for the future, on the balance of probability.
[6] He sensibly conceded that both parties suffered from certain blemishes. He conceded that the neighbour was clear that from the point of view of a neighbour seeking a neighbour who would be quiet and friendly as opposed to loud and disturbing, the defender was the better choice. He conceded that the breakdown of the relationship had been "fiery" and that the pursuer had a short temper and was easily provoked. But it was instructive and significant that he had taken advice from the police to remove himself from the situation and had gone to reside at Mr. Govan's flat on the quayside in Dundee. How much that advice was couched on the basis that the defender had obtained power of arrest against the pursuer, in the absence of evidence from the contributor of that advice, is unclear.
[7] Mr. Fraser accepted that it was a difficult case to call, given the evidence of Mr. Govan, who knew both parties and was uniquely placed to make the judgment, having had both of them occupy his property at different times, that there was little to choose between them. He said, however, that the pursuer had a ten year record of being a council tenant without ever having been evicted and with the issue of rent arrears which he had at one time accumulated having been addressed. Again, in the absence of any evidence from the landlords, this assertion was unsubstantiated.
[8] He further submitted that it was significant that the defender had a history of having been rendered bankrupt, which would have been a basis for termination of a tenancy, in circumstances which would appear to have been avoidable. His suggestion that he might derive an income of £10,000 per annum from his new confectionery business was wholly speculative when he was unable to say what his costs were during the first six months of operation. Historically and currently he was at least to some extent dependent upon public benefits. It was, he submitted, plain that the defender would struggle if he had to meet the whole rent, given that he had struggled to meet his 50% contribution. There was also a suggestion that he and Mr. Govan had abused the housing benefits system in relation to his occupancy of 2 Thorter Neuk when he was not properly regarded as being a tenant there.
[9] He submitted that the pursuer was the more credible and reliable of the two, being straightforward about his conviction for assault. The defender, on the other hand, had tried to minimise his contribution to the breakdown of the relationship and portray himself as a victim, which was to distort the truth.
[10] He submitted that there was no evidence that the pursuer had engaged in anti-social behaviour at least to a degree sufficient to bring him to the adverse attention of his landlords. It seemed clear to me that, had Mrs. Cochrane been the complaining type, he might very well have been.
[11] He made the obvious point that contact with the defender's child had principally been exercised at the defender's parents' home in Kirriemuir and there was absolutely no evidence to suggest any reason why that should not continue and so the fact that he had contact with his child was entirely neutral.
[12] Having regard to the circumstances as a whole, the fact that the pursuer had been the original tenant of Dundee City Council, that he had a ten year track record of meeting the obligations of a secure tenancy and that he was in a financial position to meet the rent, I should find in favour of the pursuer and grant an order vesting the tenancy in him.
[13] Miss Robertson for the defender submitted that the starting point for deciding who was the better prospect as a future tenant was to have regard to the conduct of the parties. The pursuer might have conceded that he had been convicted of an assault upon the defender, but he was less forthcoming about the number of occasions on which he had used violence upon the defender. Mr. Govan had seen the defender with a black eye, for example. Mrs. Cochrane said she had heard the pursuer threaten to use a knife on the defender. There was fault on the part of both parties, but the pursuer was the violent partner. She said that the pursuer was to blame for damage to the walls at both Thurter Neuk and Abbotsford Street and to damaging light fittings at the latter. He had cut plugs off appliances to prevent the defender using them. It was plain that Mrs. Cochrane blamed him for the disturbance she had had to suffer and was clear that he was the one who did most of the shouting. It was instructive, she submitted, that he was noisy even when he was there on his own. He was not friendly to her and had only once apologised for causing disturbance. She plainly had concerns were the pursuer to become the sole tenant.. In this context, Miss Robertson referred me to the judgment of Lord Kincraig in McGowan v McGowan 1986 SLT 112, where an order in terms of s. 13 of the Matrimonial Homes Act was sought in a divorce. That was a very clear cut case where there was a long history of violence by the husband towards the wife over 30 years of marriage and where there was also evidence of his having a close association with another woman. Lord Kincraig took the view that he was exclusively responsible for the breakdown of the marriage and that in these circumstances it was intolerable that he should retain the tenancy of the former matrimonial home while his wife was in cramped accommodation with her daughter and son-in-law placing substantial strain on their relationship. While Lord Kincraig's observations are helpful in assisting me to focus on the issues, the facts of the case are so dissimilar that I do not regard myself as in any way bound by the conclusion he reached. He described the exercise through which I have to go, at p113I of his judgment, as one wherein regard must be had to the statutory criteria, but, having done that, this was for the court an exercise in unfettered discretion. With that observation, I respectfully concur.
[14] In relation to finances, submitted Miss Robertson, it was plain that the defender could not meet the cost of a private tenancy and he would be forced to seek assistance from the local authority as a homeless person. So far as I can deduce from the evidence about this, such as it was, in the absence of any evidence from the local authority, exactly the same consideration would apply to the pursuer. Both parties appeared to have had rent arrears at times and it was accepted that the defender had arrears of council tax and, currently, only a limited income. However, he had met the utilities bills. At present, he would be entitled to full housing benefit.
[15] In relation to the defender's daughter, it was, of course, accepted that she was not a child of the relationship but some of the periods of contact had been exercised at 5F Abbotsford Street and, were he to be the sole tenant, his intention would to make increasing use of it for overnight accommodation as his daughter grew older, so that they could do things together in Dundee which were not available in Kirriemuir. He would not qualify for two bedroom local authority accommodation so this would be as good as it gets in the absence of him having to utilise someone else's accommodation. His parents had been very helpful and enjoyed seeing their grand-daughter, and that would continue, but he would appreciate the chance to have some time on his own with her.
[16] In relation to alternative accommodation, the suggestion that he could share with his 85 year old grandmother who was in semi-sheltered conditions and was not in good health was absurd as was the suggestion he could go and live with an aunt and uncle in Dundee. Living with his parents was the only alternative raised that had any substance. The defender did not drive and would have to travel between Kirriemuir and Dundee to his place of work at considerable expense. Plainly, residing with his parents would be far from ideal for a 39 year old man, both for him and for them.
[17] It was plain, said Miss Robertson, that the defender had been the better neighbour, at least in the assessment of Mrs. Cochrane, who was physically the nearest neighbour to 5F Abbotsford Place throughout the time that either or both of the parties had occupied the flat.
The pursuer had caused her considerable disturbance whereas the defender had always been polite, friendly and apologetic whenever there had been a disturbance. Since the pursuer's departure, there had been no trouble except during the brief periods when he came to feed his cats when he was invariably noisy and banged doors.
[18] In all these circumstances, I should make the vesting order in favour of the defender.
Conclusions:
[19] It will be obvious that I was not referred to any decision from any Scottish court, nor anywhere else for that matter, which dealt with the resolution of a joint tenancy entered into by a same sex couple who were, as a matter of law, to be regarded as a cohabiting couple, given their relationship of almost six years duration, though they had never entered into a civil partnership and so this appears to be a venture into uncharted waters. On the other hand, Miss Robertson helpfully directed me to the decision in McGowan v McGowan, a case involving a married couple from Port Glasgow where the wife had been regularly battered over a thirty year period before she eventually left and went to stay with her daughter and son-in-law in a small flat prior to invoking section 13 of the Matrimonial Homes Act in circumstances for which in 1981 it was originally designed. The contrast could, however, scarcely be sharper. With all due respect to Lord Kincraig, in that case the position could hardly be clearer. The marriage had broken down as a result of prolonged violent conduct on the part of the husband. The wife clearly needed somewhere to live and was faultless. He was suspected of involvement in an adulterous association and so potentially had somewhere else to stay. I suspect Lord Kincraig had little difficulty reaching his conclusion.
[20] I on the other hand had a much more difficult competition to resolve and I am of the opinion that it is appropriate in the circumstances to describe the function of the court as being to resolve a competition, on the balance of probability, between the parties as to which of them should now have the sole tenancy of the flat in Dundee which they occupied as joint tenants. I do not consider it necessary to repeat the somewhat convoluted statutory route to get to the test which I have to apply; suffice it to say that it is essentially the same test as Lord Kincraig applied to Mr. and Mrs. McGowan and involves all the circumstances of the case but especially the criteria contained in section 13(3) of the Act, which incorporates all the considerations laid out in section 3(3) in relation to regulating occupancy rights. That having been done, as Lord Kincraig put it, I have an unfettered discretion as to how I resolve the competition.
[21] The problem in this case is, quite simply, that there is little to choose between the combatants. The pursuer is a 33 year old student and part time barman. There was no explanation as to why he is still a student at 33 but at least in having part time employment, he is making some effort to contribute to his costs, but still benefits from working tax credits. He has a history of having been a tenant of Dundee City Council for approximately ten years and, while there have been some financial issues during that period, he has never been the subject of eviction proceedings. He had secured the tenancy from Dundee City Council in the first place. He did, however, plead guilty to assaulting the defender by grasping him by the genitalia, causing bruising and swelling. Even in the witness box, he was loud, demonstrative, garrulous and appeared to be on a short fuse. He admitted causing some damage to the flat. He was regarded by the only neighbour from the tenement to give evidence as noisy and at times the cause of disturbance - and she was very specific that he was the problem - leading to occasions when police had to be called to the building. The defender, on the other hand, had been rendered bankrupt in 2007 in the context of divorce proceedings, appeared to live on benefits, appeared to be in the process of attempting to set up a confectionery manufacturing business about which he was unable to give any evidence about its viability or even whether in the first six months of its existence it had made a profit or loss, and was said to be in arrears with his minimal residual rent after housing benefit met the bulk of it. He was said to have caused damage to a door at the property and to have removed skirting boards and door frames. He also had a conviction under s. 127(1)(a) of the Communications Act, 2003 for sending abusive texts to the pursuer and had been involved with the witness, Eric Govan, in what appeared to me to be an abuse of the housing benefits system. On the other hand, he was regarded as a quiet and friendly neighbour. They were both in the same boat were they to lose this contest in that they would be homeless and would have to seek the assistance of the local authority to re-house them. The defender had a daughter now aged about eight with whom he had residential contact on alternate weekends and for her sake it is of some consequence that he has somewhere, other than his parents' house, where he can take her and spend quality time with her.
[22] I have come to be of the conclusion that I should make the vesting order in favour of the defender. In the absence of any other clear distinction between the parties, it seemed to me that there was merit in falling back on the person considered to be the less troublesome neighbour, given the misery which can be suffered by decent tenement dwellers when they have to put up with the noisy and inconsiderate, especially when that includes both threats of and the noise of actual violence. Mrs. Cochrane, who was entirely straightforward and entirely reliable, the only one of the four witnesses of whom this could be said, was very clear that the defender, who she described as quiet and friendly, was much to be preferred to the short tempered, noisy, disturbance creating alternative. Of a lesser degree of persuasion is that this would facilitate him having residential contact with his daughter without having to utilise his parents' home in Kirriemuir. The pursuer's record as a tenant over a substantial period of time and his having obtained the tenancy in the first place were the factors most compelling in his favour, but in my opinion the factors favouring the defender are the more persuasive having regard to all the circumstances of the case. Accordingly, I have granted decree in his favour and repelled the pursuer's application.
[23] I observe that section 13((9) authorises the court to make an award of compensation to the unsuccessful party. Neither party made any claim for compensation, perhaps recognising each other's invidious financial positions, no evidence was led from which I could formulate any basis to make an award of compensation and I was not addressed by either party's agent on the topic.
[24] Finally, I was not addressed on the subject of expenses and I have accordingly assigned a diet for a hearing on expenses.