A local authority's occupancy agreement that stated it was to "continue on a fortnightly basis until the council has carried out a full investigation of your housing circumstances" was not "expressly on a temporary basis, for a term of less than six months", so as to avoid creating a Scottish secure tenancy, the Court of Session has decided.
Lady Paton, Lord Malcolm and Lord McGhie gave the ruling in allowing an appeal by Donald Gillies from the sheriff principal's decision that Falkirk Council was entitled to end his occupancy of a property without complying with the statutory provisions relating to termination of Scottish secure tenancies.
It was agreed that for the council to succeed, the agreement had to come within the Housing (Scotland) Act 2001, sched 1, para 5. It was also accepted that the agrement was expressly on a temporary basis; the question was whether it was also expressly for less than six months.
For the council it was argued that the phrase “on a fortnightly basis” was equivalent to an express reference to the agreement being for a term of two weeks. A further provision that “The total charge for this accommodation is £304.12 per fortnight, payable in arrears, on the last day of each rental period”, should be read as meaning that “rental period” was synonymous with “term” or “duration” and plainly indicated that the rental period or term was a fortnight. As it could take more than a year before an investigation was completed and a tenant offered permanent accommodation, provisions such as allowing a tenant 28 days' notice were there to give proper notice of the various protections available to the tenant.
Delivering the opinion of the court, Lord McGhie said that whatever the precise meaning of "expressly", it must have been intended "to require something which drew the attention of the tenant to the fact that the term was to be for a period of less than six months". He continued: "We are satisfied that it is necessary to find some wording... stating that the duration of the agreement is for some explicit period which does not exceed six months or that occupancy is to come to an end at some point within six months. Such a provision would not preclude express reference to the possibility of a further agreement allowing occupancy to continue after that period.
"It seems to us that the most obvious meaning to be taken from the expression 'will continue on a fortnightly basis' is not that the agreement had a term of a single fortnight but that the right to occupancy would continue indefinitely from fortnight to fortnight. Something further would be needed to show when that right was to end. In the present case, the relevant provision follows immediately. The parties’ express agreement was that the occupancy agreement would continue until the council had carried out a full investigation. There was no qualification of the time they were expected to take to do that. The reference to a fortnight can readily be understood as relating to the period in respect of which the rent was measured."
The court did not accept that a “rental period” was synonymous with “term” or “duration”. In its everyday use this expression was understood to relate to the period in respect of which instalments of rent were due.
"In short," the court concluded, "we are not persuaded that this agreement can be read as containing any express provision which could properly be regarded as indicating, far less saying, that the appellant’s right of occupancy is to be for a term of less than six months. The appeal succeeds on that basis."