Advocates Library Parliament House Edinburgh EH1 1RF
When human rights can be defence to recovery of possession of housing from public-sector tenants has been clarified by Sheriff Principal Craig Scott Q.C. at Glasgow in South Lanarkshire Council v. McKenna. The Hastie Stable’s Michael Upton has won a fourth successive round for the landlords in this long-running action.
The defender’s secure tenancy had been converted to a short Scottish secure tenancy because of anti-social behaviour. The Council then gave her notice to quit at what they said was the term of the short tenancy, i.e., when it had run for six months.
In round 1, before the Sheriff, the defender argued that, since her secure tenancy had been on an ish of a fortnight (repeatedly renewed by tacit relocation), conversion to a short tenancy had not affected the ish, and the notice to quit had consequently failed to take effect at a term date. The Sheriff agreed with the Council that the Housing (Scotland) Act 2001 means that on conversion to a short tenancy, six months is substituted for what ever the term of the secure tenancy had been (2010 Hous. L.R. 36).
In round 2, the defender argued that eviction would be unlawful under art. 8 of the E.C.H.R. because it would be disproportionate, in particular because the Council had allegedly failed in a duty to provide her with housing-support services. The Sheriff held her defence to be irrelevant (2010 Hous. L.R. 82).
In round 3, the defender appealed and successfully sought a remit of questions of human-rights law to the Inner House; in particular, whether the relevant section (s. 36) of the 2001 Act contravened art. 8 by failing to require the Council to give reasons for seeking eviction. The Inner House held that it was implicit in s. 36 that reasons needed to be given, but that since the section expressly required that before serving notice to quit, advance notice had to be given to the tenant that the landlord would require possession at the end of the six months, unless a landlord had some further reason, that would normally comply with the tenant’s right to be given reasons (2013 S.C. 212). The case went back to the Sheriff Principal
Now in round 4, the Sheriff Principal has adhered to the Sheriff’s decision that a short tenancy has a term of six months. He also agreed that the onus was on the defender to aver why eviction would be disproportionate, and that she had failed to set out any detailed case to that effect. She argued that a short tenancy was ‘probationary’ so that, unless the Council averred further anti-social behaviour, she had a right not to be removed when the six months were up, but instead would regain a secure tenancy. The Sheriff Principal disagreed: conversion to a short tenancy entailed that the tenant had lost her security of tenure, and when the term of the short tenancy was up and the procedure under s. 36 had been duly followed, the landlord had an absolute right to recover possession. Applying the opinion of the Inner House, service of the statutory advance notice was all that was needed to give reasons.
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