Tenant wins appeal over council bid to terminate tenancy agreement

Judges in the Inner House of the Court of Session upheld an appeal by Donald Gillies against a decision of the Sheriff Principal, who ruled that Falkirk Council was entitled to end his occupancy of a property without complying with the statutory provisions relating to termination of Scottish secure tenancies.

Lady Paton, Lord Malcolm and Lord McGhie heard that the respondents entered into an occupancy agreement with the defender, which stated that it was to “continue on a fortnightly basis until the council has carried out a full investigation of your housing circumstances”.

The defender failed to pay rent and the respondents gave notice to bring the occupancy to an end, but they did not give the notice required to comply with the statutory provisions relating to termination of Scottish secure tenancies, although the council contended that the agreement was governed by separate provisions relating to temporary agreements.

It was accepted that, for the purposes of the Housing (Scotland) 2001 Act, the agreement would fall to be treated as a secure tenancy if it did not contain an express provision saying that it was for a term of less than six months.

The sheriff held that there was no such provision, but the sheriff principal was persuaded that there was and the appellant challenged that decision.

For the council it was argued that the phrase “on a fortnightly basis” was equivalent to an “express reference” to the agreement being for a term of two weeks.

A further clause which provided that the “total charge for this accommodation is £304.12 per fortnight, payable in arrears, on the last day of each rental period”, should be read as meaning that “rental period” was synonymous with “term” or “duration” and “plainly indicated” that the rental period or term was a fortnight.

However, the appeal judges concluded that the agreement could not properly be viewed as including such an express provision.

Delivering the opinion of the court, Lord McGhie said: “It is unnecessary for us to embark on a detailed examination of the reasoning of the sheriff or the sheriff principal and there is no need for any elaborate exposition of the word ‘expressly’. Whatever precise meaning that word may have in different contexts, the intention of Parliament, in the present context, must have been to require something which drew the attention of the tenant to the fact that the term was to be for a period of less than six months. We accept that the provision does not require use of the actual words ‘term of less than six months’.

“But we are satisfied that it is necessary to find some wording with equivalent effect stating that the duration of the agreement is for some explicit period which does not exceed six months or that occupancy is to come to an end at some point within six months. Such a provision would not preclude express reference to the possibility of a further agreement allowing occupancy to continue after that period.

“It seems to us that the most obvious meaning to be taken from the expression ‘will continue on a fortnightly basis’ is not that the agreement had a term of a single fortnight but that the right to occupancy would continue indefinitely from fortnight to fortnight. Something further would be needed to show when that right was to end. In the present case, the relevant provision follows immediately.

“The parties’ express agreement was that the occupancy agreement would continue until the council had carried out a full investigation. There was no qualification of the time they were expected to take to do that. The reference to a fortnight can readily be understood as relating to the period in respect of which the rent was measured.”

He added: “A reference to an agreement continuing fortnightly is plainly not the same as an express provision that the agreement is only to last for a fortnight. Lawyers might argue over precisely what the legal effect of the former could be but the tenant would understand that the right of occupation which he was being given under the agreement was not to terminate at the end of each fortnight.

“The agreement does not purport to set out a mere expectation of a fresh agreement at the end of each period. It narrates an agreement that occupation will continue.

“The substantive agreement, explicitly set out, is that his occupancy will continue until the respondents have done certain things. There is nothing to hint that this was to be completed within six months far less any express provision to that effect.”

Nor did the judges accept that a “rental period” was synonymous with “term” or “duration”.

“We consider that in its everyday use this expression is understood to relate to the period in respect of which instalments of rent are due,” Lord McGhie said.

He added: “In short, we are not persuaded that this agreement can be read as containing any express provision which could properly be regarded as indicating, far less saying, that the appellant’s right of occupancy is to be for a term of less than six months. The appeal succeeds on that basis.”