The City of Edinburgh Council v Martin Smith, 19 April 2016 – Short Scottish Secure Tenancy -creation of unintentional further contractual tenancy prevents landlord recovering possession

Sheriff court case in which the City of Edinburgh Council sought decree for payment of arrears of rent and recovery of possession of a property at Springwell Place in Edinburgh.

The Council let the property to Mr Smith under a Short Scottish Secure Tenancy Agreement for an initial period of 6 months after which it was renewed on a month to month basis until one of the Council’s managing agents served a notice to quit on the tenant requiring him to remove from the property in February 2015. On the same date a notice of intention to raise proceedings for possession was served in terms of s36 of the Housing (Scotland) Act 2001.

In terms of s36(5), where the landlord has served the appropriate notices and raised the proceedings within the relevant timescale, the court must grant an order for recovery of possession if the tenancy has reached its end, tacit relocation is not operating and no further contractual tenancy is in place.

However, in this case, the sheriff was advised that an agreement had been reached with Mr Smith whereby he would remain in occupation of the property on payment of an agreed sum by way of rent (which also included the rent arrears). At a subsequent hearing before the sheriff the council also sought an adjournment rather than decree in order to give the tenant an opportunity to comply with his obligations before it obtained the decree.

Although Mr Smith did not appear in court and did not lodge any response to the council’s action, the sheriff found that the agreement between him and the council constituted a contractual tenancy:

“[t]hree of the essential clauses of a lease appear to have been agreed, namely, the parties, the subjects and the rent.  In those circumstances, at common law, the duration of the lease would be implied to be one year”.

As such, the sheriff found that the council was not entitled to recover possession in terms of s36(5) as a “further contractual tenancy” was in place and council’s action was dismissed.

The sheriff also noted that, according to the council’s pleadings, the notice to quit had been hand delivered by the council’s managing agent and, if so, it had not been validly served as only Sheriff’s Officers have the authority to serve such a notice personally meaning that, even if there had not been a further contractual tenancy in place, the requirements of s36(5) would still not have been met.

The full judgement is available from Scottish Courts here.


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