Wishaw and District Housing Association Ltd v Neary
| Jurisdiction | Scotland |
| Judgment Date | 13 January 2004 |
| Date | 13 January 2004 |
| Docket Number | No 35 |
| Court | Court of Session (Inner House - Extra Division) |
EXTRA DIVISION
Landlord and Tenant - Short assured tenancy - Lease for six months but terminable on one months notice by the tenant at any time - Whether short assured tenancy - Housing (Scotland) Act 1988 (cap 43), sec 32(1)
Words and phrases - 'Term of not less than six months' - Housing (Scotland) Act 1988 (cap 43), sec 32(1)
Section 32 (1) of the Housing (Scotland) Act 1988 provides that a short assured tenancy is an assured tenancy which, inter alia, is for a term of not less than six months.
A lease of a dwellinghouse between a housing association as landlord and a tenant was for a period of six months but was terminable by the tenant giving the association one month's notice in writing at any stage of the tenancy, including within the initial six-month period. The housing association brought proceedings against the tenant in the sheriff court for recovery of possession of the house. The sheriff held that the tenancy was a short assured tenancy and granted warrant for ejection. The tenant appealed to the sheriff principal, who refused the appeal. The tenant appealed to the Court of Session.
The appellant argued that the tenancy was not a short assured tenancy as the break clause meant that it was not for a term of not less than six months. The respondent argued that once a short assured tenancy was in place it thereafter retained its character as a short assured tenancy whatever the mechanism by which the relationship of landlord and tenant persisted.
Held that the existence of the break clause did not have the effect of rendering the term less than six months (para 10); and appeal refused.
Opinion reserved as to the effect of a break clause in favour of the landlord which could bring the tenancy to an end earlier than six months from its commencement (para 11).
WISHAW AND DISTRICT HOUSING ASSOCIATION LTD raised a summary cause against Michael Neary in Hamilton Sheriff Court seeking recovery of possession of a house at 11 Station Road, Wishaw. The sheriff granted warrant for ejection. The defender appealed to the sheriff principal who refused the appeal. The defender appealed to the Court of Session.
The cause called before an Extra Division comprising Lord Hamilton, Lord Kingarth and Lord McCluskey for a hearing on the summar roll.
Case referred to:
Cummins Engine Co Ltd v Inland RevenueSC 1981 SC 365
Textbooks etc referred to:
S Bridge, Residential Leases (1994, Blackstone Press, London), pp 73, 74
H A Hill and J H Redman, Guide to Landlord and Tenant Law (Furber et al ed, Butterworth, London, 1999), paras 1.05, 1.10
J Rankine, A Treatise on the Law of Leases in Scotland (3rd ed, 1916), pp 1, 522, 527
A M A McAllister, Scottish Law of Leases (3rd ed, Butterworths, Edinburgh, 2002), para 2.19
G C H Paton and J G S Cameron The Law of Landlord and Tenant in Scotland (1967, W Green/Scottish Universities Law Institute, Edinburgh), pp 242, 243
At advising, on 13 January 2004, the opinion of the Court was delivered by Lord Hamilton -
OPINION OF THE COURT -
[1] The appellant and the respondents are respectively the tenant and the landlords of a dwellinghouse at 11 Station Road, Wishaw. The tenancy is regulated by an agreement in writing dated 14 September 2001. The respondents contend that the tenancy is a 'short assured tenancy' as defined by sec 32(1) of the Housing (Scotland) Act 1988; the appellant contends that, while the tenancy is an assured tenancy, it is not a 'short assured tenancy' as so defined.
[2] The respondents having served notice under sec 33 of the Act and the appellant having failed to vacate the dwellinghouse, they raised a summary cause against the appellant in Hamilton Sheriff Court for recovery of possession of it. The appellant defended the action. The sole issue between the parties was...
To continue reading
Request your trial
-
Caterleisure Limited V. Glasgow Prestwick International Airport Limited
...appropriate action at a defined break, be terminated prematurely." Subsequently in Wishaw and District Housing Association Ltd v Neary 2004 S.C. 463, an Extra Division reached the same conclusion where the issue was whether a Scottish assured tenancy was "... for less than 6 months" for the......