Sheriff Court case considering a lease of residential property at 39 Calside Road in Dumfries. The landlords (Calmac) were seeking to recover possession of the property from the tenant at the end of the term. The issue for the court was whether the lease was a short assured tenancy (in terms of the Housing (Scotland) Act 1988).
For a tenancy to qualify as a short assured tenancy, it must be “for a term of not less than 6 months” (s 32(1) of the 1988 Act).
The lease stated:
“The Date of Entry will be 29th April 2011. The Let will run from that date until 28th October 2011…”
The general rule for calculating time periods, known as the civilis computatio, is that the whole of the day on which a period commences is excluded and the whole of the day on which it ends is included (days being indivisible for the purposes of the rule).
Following that rule, the period of the lease in question would be one day short of 6 months. The sheriff rejected Calmac’s argument that there is a general exception to the rule for leases (on the basis that the date of entry should always be counted when computing the term of a lease). However, after considering the authorities, he found that use of the words ‘date of entry’ in the lease meant that it had been contemplated that the tenant would take entry on that date thus creating an exception to the general rule[1].
Consequently, the lease ran from midnight on the 28th April meaning that its term was exactly 6 months and the lease was correctly constituted as a short assured tenancy.
The full judgement is available from Scottish Courts here.
All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.
[1] The sheriff then appears to say that, without the words ‘date of entry’, a lease which runs ‘from’ a specified date commences at midnight the following day. In this case that would have been midnight on 30th April. It may be that what was intended was that a lease that runs from a specified date commences at midnight on that date i.e. in this case it would have commenced at midnight on the 29th.
