Falkirk Council v Donald Gillies, 9 December 2016 -status of occupancy agreement

Inner House case concerning an occupancy agreement between Falkirk Council and Mr Gillies. Mr Gillies failed to pay rent and the Council gave notice bringing the occupancy to an end.

The notice given by the Council did not comply with the statutory provisions relating to the termination of Scottish secure tenancies. However, the Council argued that the provisions did not apply as the agreement was governed by separate provisions relating to temporary agreements in terms of paragraph 5 of Schedule 1 of the Housing (Scotland) 2001 Act:

“A tenancy is not a Scottish secure tenancy if the house is being let to the tenant expressly on a temporary basis, for a term of less than 6 months, in fulfilment of a duty imposed on a local authority by Part II (homeless persons) of the [Housing (Scotland) Act 1987]“.

The agreement in question provided:

 “1.4     The Occupancy Agreement will take effect from 9 December 2009 and will continue on a fortnightly basis until the Council has carried out a full investigation of your housing circumstances and, depending on the outcome of that investigation has provided you with an offer of secure permanent accommodation or given you a reasonable opportunity to secure alternative accommodation. You will be given 28 days notice when the Occupancy Agreement is being terminated as set out in part 5 of this agreement.”

The Council contended that this clause made express provision that the agreement was for a term of less than 6 months. In particular, they argued that that the phrase “on a fortnightly basis” was equivalent to an express reference to the agreement being for a term of two weeks.  They also referred a clause which provided: “The total charge for this accommodation is £304.12 per fortnight, payable in arrears, on the last day of each rental period” and argued that the words “rental period” were synonymous with “term” or “duration” and that specifying that the rent was “£304.12 per fortnight”, payable on the last day of “each rental period”, indicated that the rental period or term was a fortnight.

The court rejected the Council’s arguments and allowed an appeal. The most obvious meaning of the expression “on a fortnightly basis” was not that the agreement had a term of a single fortnight but that the right to occupancy would continue indefinitely from fortnight to fortnight. As to the words “rental period” the court took the view that, in their everyday use and in the context in which they had been used in the agreement, the words related to the period in respect of which instalments of rent were due and were not synonymous with “term” or “duration”.

The full judgement is available from Scottish Courts here.


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