East Lothian Council V. Barry Duffy And Others
| Jurisdiction | Scotland |
| Judge | Sheriff P Braid |
| Court | Sheriff Court |
| Docket Number | SD13/11 |
| Date | 09 May 2012 |
| Published date | 22 May 2012 |
SHERIFFDOM OF LOTHIAN AND BORDERS AT HADDINGTON
SD13/11
NOTE
BY
SHERIFF PETER J BRAID
in the cause
EAST LOTHIAN COUNCIL, John Muir House, Haddington, EH41 3HA
Pursuer
-v-
BARRY DUFFY and JACQUELINE DUFFY, "Sequoia", Lennoxlove Estate, Haddington, EH41 4HH
Defenders
and
ALAN COCKBURN and LEIGH BURN, 25 Glenburn Road, North Berwick, EH39 4DJ
Qualifying Occupiers
Haddington, 9 May 2012
Introduction
| 1 | This is a summary cause action for recovery of possession of subjects at 25 Glenburn Road, North Berwick ("the subjects"), in which the pursuer is East Lothian Council, who are the heritable proprietors and landlords of the subjects. The action is brought against Barry Duffy and Jacqueline Duffy, who reside at "Sequoia", Lennoxlove Estate, Haddington but who are, or at least, were, the tenants of the subjects (hereinafter, "the defenders"). The tenancy in question is a Scottish Secure Tenancy in terms of the Housing (Scotland) Act 2001 ("the 2001 Act"). Also party to the action are Alan Cockburn and Leigh Burn, who reside in the subjects and who are therefore "qualifying occupiers" (and hereinafter referred to as such) by virtue of section 14(6)(b) of the 2001 Act. They were sisted as parties to the action under section 15 of the 2001 Act and have assumed the defence of it. It is not in dispute that the subjects lie within the jurisdiction of this court. |
| 2 | After sundry procedure, the action called before me for proof on 1 and 30 March and 12 April 2012. The pursuers were represented by Mr Wilson, and the qualifying occupiers by Mrs Corsar, both solicitors. The defenders appeared, unrepresented, on the first day of the proof, but made it clear that they had no interest in participating in the proof in the sense of examining witnesses or making submissions. Mrs Duffy gave evidence for the qualifying occupiers, following which the defenders chose to play no further part in the action. |
| 3 | By and large, with several exceptions discussed below, the factual background was not in dispute at the proof. Much of the evidence was agreed by joint minute, and even then much of the evidence which was led consisted of the witnesses speaking to facts and documents which had already been agreed. As the defenders have long since vacated the subjects and have no intention of returning, the real question for determination is whether the pursuers are entitled to recover possession from the qualifying occupiers. |
| 4 | In determining that question, various legal issues arise. These include: the nature of the right of a qualifying occupier in an action such as this; the relevance of the pursuer's previous refusal to consent to an assignation of the lease to the qualifying occupiers; whether the lease was terminated by the defenders' intimation to the pursuers that they did not intend to return to the subjects; and the approach to be taken to the assessment of reasonableness. |
| 5 | Finally, since much was made of it at the proof, it is pertinent to mention the previous action raised by the defenders, namely a summary application appealing against the said refusal by the pursuer to assign the lease to the qualifying occupiers. That application was raised in 2009, was thereafter sisted and was eventually dismissed following the lodging of a joint minute in which the pursuer and defenders agreed to that disposal. The qualifying occupiers were not party to those proceedings. |
Agreed facts
| 6 | The following material facts were either agreed by joint minute, or accepted in evidence to be non-controversial. |
| 6.1 | The tenancy agreement (styled "missive of let") between the pursuer and defenders over the subjects was executed on 25 May 2002. A copy of it is number 5/22 of process. It provided at paragraph 1 that the lease commenced on 18th February 2002 "and shall be terminated by either party giving to the other twenty eight days notice in writing of termination". The lease was therefore of indefinite duration with no ish and provided for a break on either side of 28 days' notice. No definite ish was implied into the agreement. |
| 6.2 | Permission was granted by the pursuer to the defenders, following receipt of the defenders' written application (5/2 of process) and sundry correspondence thereafter (5.3 to 5/5 of process), to sub-let the subjects to the qualifying occupiers from 4 August 2008 to 2 August 2009. The pursuer's consent was communicated to the defenders by letter dated 25 July 2008 (5/6 of process). It was a specific condition of the pursuer's permission, that the sub-let would be granted for a period of up to one year after which the defenders would require to return to the property or arrange to terminate the tenancy. It was a further condition of the pursuer's permission that should the defenders decide to terminate before or on the expiry date of the sub-let then the qualifying occupiers would not have rights to succeed to the tenancy. |
| 6.3 | The pursuer wrote to the qualifying occupiers on 21 August 2008, confirming the basis of the agreement to sub-let. In particular, the letter stated that: "...the council is prepared to allow you to sub-let [the subjects] for a period of one year, commencing on Monday 4 August 2008. When the sub-let expires on Sunday 2 August 2009 you will be required to leave the accommodation as the tenant will be required to resume living in the property." |
| 6.4 | By letter dated 14th July 2009 (5/9 of process) the defenders advised the pursuer that they had secured alternative accommodation elsewhere and no longer required the subjects. In particular, the letter stated: "...we have been given a 3 bedroom house through our work - so we will not be returning to [the subjects] on the 4th of August 2009. We would be very grateful if you could help out Mr Cockburn and Miss Burn with their housing problem...." |
| 6.5 | The pursuer issued a letter dated 15 July 2009 (5/10 of process) in which it purported to acknowledge notification to end the tenancy as of 12 August 2009. The letter stated: "I acknowledge your notification to end the above tenancy as of 12 August 2009...All keys must be returned to this office by 10.00am on 12th August 2009. If the keys are returned late, then your tenancy will continue until the day after they are handed in." |
| 6.6 | The defenders have remained absent from the subjects since 12 August 2009. |
| 6.7 | The qualifying occupiers have continued to reside in the subjects following the expiry of the sub-let. |
| 6.8 | By letter dated 22 July 2009 (5/11 of process) the defenders requested consent for assignation of the tenancy to the qualifying occupiers. By letter dated 29 July 2009 (5/12 of process) the pursuer refused this request. The reasons for refusal as aforesaid were stated as follows: |
| "You have advised us you have no intention of returning to the tenancy and had already agreed to terminate the tenancy if you did not return. You have already decided to terminate your tenancy before expiry of the termination of the existing sub-let. This is set out in the sub- let agreement signed by you both on 29.7.08" | |
| 6.10 | The defenders raised a summary application (B283/09) appealing against the refusal and ordaining the pursuer to assign the tenancy. A copy of the application is item number 1 on the qualifying occupiers' third inventory of productions. These proceedings were dismissed in terms of interlocutor dated 7 November 2011 (No 5/21 of process). |
| 6.11 | On 14 November 2010 notices of proceedings for recovery of possession of the subjects were served personally on the defenders. On 15 November 2010 notices of proceedings for recovery of possession of the subjects were served personally on the qualifying occupiers. These notices were served in terms of section 14 of the Housing (Scotland) Act 2001 and informed the defenders and qualifying occupiers that the pursuer may raise proceedings for the recovery of possession within the statutory six month period on the ground that the defenders had been absent from the subjects without reasonable cause for a continuous period exceeding 6 months or had ceased to occupy the house as their principal home. Copies of the notices are appended to the summons. |
| 6.12 | The present proceedings were duly raised within 6 months of the required date. |
| 6.13 | The qualifying occupiers have no rental account with the pursuer. During the period of the sub-let the defenders remained responsible for all aspects of the tenancy including rental payments. |
| 6.14 | The pursuer's written guidance recommends that tenants who are sub-letting arrange for the sub-tenant to pay rent to the tenant by direct debit or standing order and that the tenant continue to make payment by direct debit to the pursuer into the tenant's rental account. |
| 6.15 | The qualifying occupiers during the period of the sub-let chose to set up a standing order and made payment directly to the defenders' rent account. The qualifying occupiers were advised by the pursuer to cancel the standing order payments following the closure of the rental account but have chosen not to and continued making payments. All rental payments due during the period of the sub-let were paid. |
| 6.16 | A standing order can only be cancelled by the individual responsible for originally setting it up. As a consequence the standing order payments continued to be received by the pursuer. These payments could not be allocated to the defenders' closed rental account. |
| 6.17 | The pursuer has attempted to return those funds received after the closure of the rent account firstly by cheque and thereafter by BACs transfer. The qualifying occupiers failed to cash those cheques and immediately returned funds repaid to them by BACs transfer. The pursuer is currently unable to return funds to the qualifying occupiers... |
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