HOUSING LAW UPDATE: FEBRUARY 2007

Author: Derek O'Carroll | Posted: February 16, 2007

Download Full Article: Housing Law Update Feb 2007.pdf

The following is an update on housing law developments including a digest of cases on housing law reported or decided between April 2006 and January 2007, and legislation passed between April 2006 and January 2007. It includes English cases where those cases are significant and are relevant to Scottish law. Readers should however approach such cases with care due to the differences in the legislation and common law between the two jurisdictions. Full texts of the cases cited can usually be found on the web. www.bailii.org should contain all the English Court of Appeal decisions and House of Lords decisions referred to here.  It also contains some High Court decisions. www.scotcourts.gov.uk has all Court of Session decisions and some sheriff court decisions. Unreported sheriff court decisions not on this site can be obtained from the court concerned for a fee. The Scottish legislation can be found at www.opsi.gov.uk/legislation/scotland/s-acts.htm and the official Statute Law Database (with updated legislation) is at www.statutelaw.gov.uk.

CASELAW

Eviction
Aberdeen City Council v Shauri 2006 HousLR 40 (Sh Pr)
The pursuers obtained decree by default for recovery of possession against the tenant, a failed asylum seeker, on the grounds of rent arrears. The defender appealed and sought to be reponed. He claimed that he was present in the court building on the day that decree was granted and had not found out about the decree until too late.  The reason for the rent arrears was because his benefit payments had stopped after his application for asylum had been turned down.  His solicitors had made a second application for asylum which if granted, would permit him once more to obtain benefit.  The Sheriff Principal refused the appeal.  While an appeal court would be reluctant, in any case in which prima facie there appeared to be a proper defence, to allow decree to pass without investigation of that defence, this was one of the rare cases in which it would not be appropriate to allow the defender to be reponed against the decree by default since if the sheriff had to reconsider the matter afresh, he would be driven inexorably to grant decree given that the rent arrears had risen to over £4500 with the defender only able to make five monthly payments of £20.  The success of the future application for asylum was purely speculative.

Glasgow Housing Association Ltd v Gourlay 2006 HousLR 52 (Sh)
The pursuers sought recovery of possession on the grounds that the tenant had been convicted of supplying drugs from the house. The action was defended solely by the wife of the tenant as a qualifying occupier.  She resided in the property with her two adult sons who were also qualifying occupiers.  She claimed that she was unaware of any drug dealing from the premises and that she had led a separate life from her husband.  She accepted that there was alternative accommodation available to her.  The sheriff held that it was reasonable to grant the order since the wife could not have been unaware of her husband's dealings, the dealings were anti-social behaviour and she had done nothing to improve the situation.  The tenant continued to reside In the premises following a police search.  It was reasonable to grant decree.

Glasgow Housing Association Ltd v Marshall 2006 HousLR 56 (Sh)
The pursuers sought recovery of possession on the grounds of anti-social behaviour by the tenant and her children or those visiting the property. The pursuers said they could not rent the neighbouring property while the defender and her family remained in the house.  The Sheriff held that the tenant and her children were guilty of anti-social behaviour.  Even though there had been a reduction in that behaviour since the action was raised, given the defender’s general dishonesty and her behaviour over a considerable period of time, the sheriff considered it was not reasonable that the pursuers should be required to make other accommodation available.  He also considered that it was reasonable to grant decree for recovery of possession.

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