Sheriff refuses housing association’s bid to evict cannabis-growing tenant

Glasgow Housing Association raised court proceedings after the tenant Mark Stuart was convicted of the production of the class B drug in the apartment.

However, Sheriff Stuart Reid ruled that in the circumstances, it was “not reasonable” to make an order following what was an “isolated” incident.

Glasgow Sheriff Court heard that the defender’s occupation of the 10th floor flat in a multi-storey residential block on St Mungo Place in Glasgow, under a Scottish secure tenancy agreement, commenced in March 2005.

In May 2013, acting on intelligence, police officers attended and detected a strong smell of cannabis emanating from the flat. Later that day, police officers returned to the property and upon identifying themselves, the defender told the officers: “I’ve got five plants. They’re for my own use”.

The tenant consented to a search, during which officers discovered a cultivation of five cannabis plants in a small hall cupboard, together with growing equipment, and a small quantity of herbal cannabis in the living room.

In September, the defender tendered a plea of guilty, at the earliest opportunity, to a charge on summary complaint that, on 24 May 2013 at the subjects he produced a controlled drug, namely cannabis, contrary to section 4(2)(a) of the Misuse of Drugs Act 1971.

Upon conviction, the defender was ordered to pay a fine of £300, which he paid in full and on time, but in December 2013 a notice of proceedings for recovery of possession was served on him by the housing association.

The pursuers sought an order for recovery of possession of the subjects on the grounds that obligations under the tenancy had been breached because the defender had been convicted of using the property for an illegal purpose, and/or had been convicted of an offence punishable by imprisonment committed in the flat, and that he had acted in an anti-social manner in relation to a person residing in, visiting, or otherwise engaged in lawful activity in the locality.

The defender, who had lived alone in the apartment for nine years, admitted that the first two statutory grounds were established, but disputed that the third statutory ground was established. In any event, he submitted that it was “not reasonable for the court to make an order for recovery of possession on any of the statutory grounds founded upon by the pursuers.

Sheriff Reid assoilzied the defender after ruling that the defender’s criminality, breach of contract and anti-social conduct were “comparatively minor” in nature, involving a single, small-scale cultivation of a class B drug of no material quantity or value, for personal use only.

The sheriff observed that the defender had “a lengthy and otherwise unblemished record” as a tenant, both before and since the date of the “isolated” incident.

The sheriff also noted that prior to raising the present proceedings, “no steps” had been taken by the pursuer to secure the cessation of the defender’s drug-related offending, nor did they consider any option, sanction or course of action short of termination of the tenancy and the removal of the defender from the subjects.

He added that the defender had a “consistent work record” and his personal circumstances, taken cumulatively, were “mitigating in nature”.

The court heard that if the order sought was granted, the defender would be “likely to experience considerable difficulty” in obtaining any other public sector tenancy.

Sheriff Reid’s note stated: “Taking account of the foregoing, in my judgment it is not reasonable to grant decree against the defender in the present case. While there is a public interest in taking a firm approach to drug-related offences, there is also a public interest in not evicting a tenant whose contractual breach and misconduct may properly be regarded as isolated, comparatively minor, and unlikely to be repeated; whose personal circumstances indicate that the individual is otherwise able and willing to adhere to the terms of the tenancy agreement and to make a positive contribution to society; and for whom, viewed in the round, the sanction and consequences of eviction are disproportionate to the gravity of the misconduct upon which the proceedings are based.”