In a recently published case, Eastmoor LLP (the Landlord) against Keith Bulman (the Tenant) heard at Dumfries Sheriff Court, the Landlord asked the court to grant an order for recovery of possession of rented premises before the actual date on which the tenancy agreement was due to terminate. Sheriff Jamieson, however, refused to grant the order sought deciding instead to dismiss the action due to a “poorly drafted” lease.
The Landlord told the Court that an AT6, being a notice that legal proceedings are going to commence, was served on the Tenant “intimating the tenancy would terminate on or before 17 February 2014.” The grounds for recovery specified in the AT6 all related to arrears of rent or persistent delays in payment of rent which grounds are detailed in 8, 11 and 12 of Schedule 5 of the Housing (Scotland) Act 1988. These grounds, unfortunately, in the actual assured tenancy agreement entered into between the Landlord and Tenant were only referred to by reference to the 1988 Act.
In Section 18(6) (b) of the Housing Scotland Act 1988 it quite clearly provides that the sheriff shall not make an order for possession of a house let on an assured tenancy unless the terms of the tenancy agreement make provision for it to be brought to an end on the ground in question.
The tenancy agreement in this case at Clause 1(g) states:
“If any of the grounds referred to in Grounds 8, 11, 12,13,14,15 or 16 of Schedule 5 of the Housing (Scotland) Act 1988 occur, the Landlord shall be entitled not only to recover from the tenant all loss or damage caused by the Tenant which they may hereby sustain and all rents due and which may become due and in addition may forthwith put an end to this lease and may commence proceedings for possession.”
The presiding Sheriff argued this clause was badly written:
- It mentions but does not specify what the grounds in fact are and
- It wrongly assigns to the Landlord the right to “forthwith” put the lease to an end if these grounds occur, but in fact the lease can only be terminated during its term on an order for possession granted by a Sheriff.
This case highlights the importance of drafting a lease very carefully to avoid the Landlord suffering consequences. With the Sheriff dismissing this case, the Landlord will now only be able to end the tenancy by giving a Notice to Quit at its term-not very satisfactory when the Tenant is already in arrears of rent.
We must emphasise that Landlords and Agents should always seek advice at an early stage in their negotiations to ensure that their leases comply with all legal requirements.
I have many years of experience drafting leases and if I can help, please contact me by email at rjl@mitchells-roberton.co.uk or by telephoning 0141 552 3422.
