23 Dec 2014
Keith Hamilton, Solicitor, comments on recent case involving rented property.
Is it reasonable under the circumstances to grant Decree for possession of a property occupied under a Scottish Secure Tenancy, where the Defender is involved in the small scale cultivation of Cannabis for his own use?
Glasgow Housing Association (the “Pursuer”) sought an order from the Court to recover possession of the property which Mark Stuart (the “Defender”) occupied under a Scottish Secure Tenancy.
The Defender had entered into the Secure Tenancy Agreement with the Pursuer in 2005. In May 2013, the Defender consented to a search of the property by police and cannabis was found which he claimed was for his own use.
The Pursuer sought recovery of the property in terms of the tenancy agreement on the basis that he had breached a clause of the Agreement by using the property for an illegal purpose (namely the production of a controlled drug). The Pursuers further argued that the Defender had breached the Agreement by acting in an anti-social manner toward his neighbours, specifically by his cultivation of a controlled drug in the property.
Notwithstanding anything expressly stated in the Agreement, a Scottish Secure Tenancy of a house cannot be brought to an end except by one of six mechanisms prescribed by The Housing (Scotland) Act 2001 (the “2001 Act”). One such mechanism is a court order in Summary Cause proceedings for recovery of possession of the property.
Unless the Court exercises its discretion to adjourn proceedings, it must make an order for possession (i) if the landlord has established a statutory ground for recovery of possession under paragraphs 1 to 7 of schedule 2 to the 2001 Act; (ii) if that statutory ground is specified in a pre-action notice served in the prescribed form in accordance with section 14 of the 2001 Act; and (iii) if it is “reasonable to make the order” (2001 Act, section 16(2)(a)).
The Pursuer sought to recover possession on three of the statutory grounds specified in the 2001 Act. The Defender conceded that the first two statutory grounds had been established. He disputed however that the third ground was established. This ground being that there was no evidence that any neighbour, visitor or attending police officer was alarmed, distressed, annoyed, or caused any nuisance by the Defender’s conduct.
The Sheriff found that in this regard, the Defender’s conduct had to be judged objectively and whether it was likely to cause alarm, distress, nuisance or annoyance to a hypothetical “reasonable” person, residing in, visiting or otherwise engaged in lawful activity in the locality. The Sheriff found that the action of the Defender was likely to cause, at least, annoyance and nuisance, and possibly also distress to the hypothetical “reasonable” person. Consequently he found that this first element of this statutory ground was established. The Sheriff also found that the second ground, namely that it would not be reasonable for the landlord to be required to re-house the defender elsewhere was also established since the Defender did not challenge this.
The Sheriff found that the pre-action notice in the prescribed form was duly served.
The Sheriff found that it was not reasonable, in the particular circumstances of the case to grant Decree against the Defender.
He found that the 2001 Act requires that the Court should have regard, in particular, to the nature, frequency and duration of the conduct when considering that the particular ground is established. The Sheriff found that the duration of the conduct was relatively limited, as was the frequency. There had been no evidence of other complaints, or incidents involving similar conduct by the Defender before or since. The Sheriff further found that the Court also had to have regard to the nature of the conduct underlying the breach of contract. He found that the Defender’s conduct in cultivating a controlled drug was illegal, reprehensible and anti-social. However, in analysing the conduct, firstly, as a contractual breach in terms of Paragraph 1 of Schedule 2 of the 2001 Act it was not to be regarded as a material breach.
The Sheriff found that the Defender’s conduct could not be said to go to the “root and essence” of the Agreement. The root and essence of the contract is the provision of housing of a specified standard for a specified rental.
In the Sheriff’s judgment, the offence in this case was, in nature, properly regarded as being at the lower end of the scale of criminality. Likewise, the underlying misconduct was, in nature, properly regarded as being at the lower end of the scale of anti-social behaviour. It involved a single, small-scale cultivation by a first offender of a class B drug, of no material quantity or value, for personal use only, prosecuted on summary complaint and resulting in a modest monetary fine. The criminal conduct was limited in duration; it was isolated in frequency; it caused no actual alarm, distress, annoyance or nuisance; and there were no other aggravating features (such as, for example, interference with the electricity meter or supply; the presence of children or other innocent parties in the house; or non-cooperation with the police, court or landlord).
The Sheriff also gave consideration as to whether any steps were taken by the Pursuer before raising the proceedings with a view to ascertaining the nature of the risk of repetition. He had to consider the interests of the Defender’s personal circumstances, the neighbourhood and the wider public interest in deciding whether it was reasonable to grant Decree. He further considered that if an order was granted for recovery of possession of the subjects, the defender would not be granted another tenancy from the pursuer in the future; he was likely to be categorised by Glasgow City Council as being intentionally homeless; he was likely to experience considerable difficulty in obtaining any other public sector tenancy; and he was unlikely to be able to afford comparable housing in the private sector.
This is a somewhat surprising decision given the reasons for which the Pursuer sought repossession of the property. It does, however, highlight that the Court must adopt a “reasonable” approach in all the circumstances of the case in considering whether to grant Decree in actions for repossession of heritable property, whether tenanted or owned and that reasonableness isn’t necessarily in favour of the landlord.