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  4. Eviction appeals need "compelling reasons": sheriff principal

Eviction appeals need "compelling reasons": sheriff principal

10th June 2015 | Housing

Appeals against court decrees granting eviction of a tenant must put forward compelling reasons why the sheriff was wrong and not just amount to an appeal for sympathy, according to a sheriff principal in a judgment published yesterday.

Sheriff Principal Craig Scott at Glasgow Sheriff Court made the comments in refusing an appeal by Danuta Harasimowicz against an order for her ejection from the property she leased from Glasgow West Housing Association Ltd, along with decree for payment of £1,409.70 in arrears of rent. (The arrears were now said to amount to £3,984.)

The sheriff had found that there was no prospect of the arrears being reduced within a reasonable period, that any suggestions about repayment were "speculative and woolly", and nothing had been specified by the defender about supposed health issues. She had not paid rent since December 2013, when she had returned to her native Poland for a year, failing to use the property as her principal home in breach of the tenancy agreement. She was now attempting to find work but her jobseeker's allowance had been stopped as she was treated as a new arrival in this country.

Sheriff Principal Scott said the defender’s line of argument involved "trying to persuade the court that sympathy towards her plight taken along with a massively optimistic approach to her future ability to generate income was sufficient and relevant to justify allowance of the appeal". The defender's financial position had arisen largely through her own decision to go to Poland.

Adopting a comment by the late Sheriff Principal Nicholson that “reasonableness is not itself a fact but instead a concept or conclusion determined by an exercise of judgement”, he continued: "Similarly, in my view, appeals in cases of this nature should never amount to an appellant, in effect, requesting that the court should give the appellant 'a second chance' or should find greater sympathy with the appellant’s predicament or should be invited to consider material not presented to the sheriff when decree was granted.

"In advancing appeals in such cases, both parties and their legal advisors must be aware that cogent and compelling reasons for suggesting that the sheriff erred in the aforementioned exercise of his judgment are required. Too often, as it would appear in this case, appeals are lodged with grounds which (to use the sheriff’s phraseology once again) are speculative and woolly. In effect, they serve to buy more time for an appellant whose overall circumstances suggest that eviction is not just reasonable but inevitable and where there is no material available to suggest that the sheriff in question plainly erred."

Click here to view the judgment.

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