Scottish Sheriff Court Decisions

SHERIFFDOM OF SOUTH STRATHCLYDE DUMFRIES AND GALLOWAY AT DUMFRIES

 

COURT Ref. No.: SD203/11

JUDGMENT

of

SHERIFF GEORGE JAMIESON

 

in the cause

 

CALMAC DEVELOPMENTS LIMITED, Nether Brookfield, Craigs Road, Dumfries, DG1 4UT

PURSUERS

against

 

 

 

WENDY MURDOCH, 39 Calside Road, Dumfries DG1 4HA

DEFENDER

 

 

DUMFRIES February 2012

 

Act: Beattie

Alt: King (CAB)

 

The Sheriff, having resumed consideration of the cause:

 

Finds the following facts admitted:

 

The parties are as designed. The pursuers are heritable proprietors of the property at 39 Calside, Dumfries. The defender is the tenant. The lease was signed at 14:49 on 29^th April 2011. The tenancy has reached its ish. The pursuers have served the necessary statutory notices to recover possession. The defender continues to reside in the property.

 

Finds in fact and law:

 

The tenancy is a short assured tenancy in terms of the Housing (Scotland) Act 1988.

 

Finds in law:

 

The pursuers are entitled to recover possession of the property.

 

THEREFORE:

 

Grants decree finding the pursuers entitled to recover possession of the property at 39 Calside Road, Dumfries and ordaining the defender, her family, subtenants and dependants to remove therefrom with their goods and possessions; Finds the defender liable to the pursuers in the expenses of the action as assessed; Appoints the sheriff clerk to fix a Diet of Assessment of Expenses on

And to fix a diet of Approval of Expenses on

 

 

 

Sheriff George Jamieson

 

NOTE

 

Introduction

 

[1]                This is a summary cause for recovery of possession of a dwellinghouse. The facts were admitted. I heard submissions on 9^th February 2012.

 

[2]                The issue was whether, on these admitted facts, the tenancy was a short assured tenancy. It was agreed that if it was, the pursuers would be entitled to decree with expenses and if it was not, the defender would be entitled to decree of dismissal with expenses.

The Law

 

[3]               For a tenancy to qualify as a short assured tenancy, it must be "for a term not less than six months": Housing (Scotland) Act 1988, section 32(1) (a).

 

[4]               The Act gives no guidance on how to compute this term. Computation of time therefore falls under the general rule of civilis computatio: Stair Memorial Encyclopaedia, vol 22, para. 819. Under this rule, the day on which the period commences is excluded and the day on which it ends is included: Sickness and Accident Assurance Association v General Accident Corporation (1892) 19R 977; Key Housing Association v Cameron 1999 HLR 47.

 

The term

 

[5]               Clause Two of the Tenancy Agreement States:

 

"The Date of Entry will be 29^th April 2011. The Let will run from that date until 28^th October 2011..."

 

[6]               It is apparent, computing the period from 29^th April 2011 to 28^th October 2011 civilis computatio that this is not a period of six months. By excluding 29^th April and including 28^th October, the period is six months less one day.

 

Submissions: Discussion 1

 

The defender

 

[7]               Mr King argued that even if the 29^th of April were included in the term, the lease had been signed in the afternoon and therefore the tenant could not have taken entry until the afternoon. On any view therefore he submitted the tenancy was for less than six months and not a short assured tenancy.

[8]               I do not accept that submission. The time of signature (written on the defender's copy lease) is not part of the contract of lease. It is not specified in the body of the lease itself, that it run from a moment in time, nor that it end at a specific moment in time. Under the civilis computatio method of computing time, fractions of a day are ignored.

 

The pursuer

 

[9]               Miss Beattie referred to Mr Barrowman's book on Residential Evictions, para. 2.40 wherein the learned author argues for a general exception to the civilis computatio rule in the case of leases on the pragmatic ground entry has to be taken "from" the first day and therefore that day should always be counted in computing the term of the lease.

 

[10]           I respectfully disagree with that opinion. In my opinion, there is no special exception for leases recognised in the law.

 

[11]           Following the sheriff in Key Housing Association v Cameron 1999 HLR 47, I consider the rule applies to leases as much as any other contract. The computation of the term of any lease is in my view a matter of interpretation of its precise terms. The starting point is the term is computed civilis computatio in the normal way, unless some exception can be discerned from the contract itself.

 

Submissions: Discussion 2

 

[12]           Miss Beattie argued for an exception to the civilis computatio rule in this particular case. She drew attention to the provision in Clause Two of the lease referring to the "date of entry" being 29^th April 2011 and submitted the word "from" in relation to the term of the lease fell to be construed "from the date of entry".

 

[13]           She referred to the case of Mackenzie v Liddell (1883)10R 705, footnoted at footnote 14 of vol 22, para. 822 of the Stair Memorial Encyclopaedia, in support of the proposition that such language implied the first day, contrary to the normal rule, was to be included in the term of the lease.

 

[14]           In Mackenzie v Liddell (1883)10R 705, a charter party for the hire of a tug specified the hire would commence from 8^th September, "at which date" the vessel was to be at the disposal of the charterer at Greenock.

 

[15]           There was considerable division of opinion in the Second Division over whether this meant the tug was to sail from the earliest moment on 8^th September.

 

[16]           Lord Young would have dissented if left to his own opinion, but deferred to the opinion of the majority and did not dissent. Lord Rutherford Clark confessed to having "considerable difficulty in this case but I do not dissent from the judgment".

 

[17]           The leading opinion was delivered by Lord Craighill, with whom the Lord Justice Clerk concurred in relation to the interpretation of the contract, but not the support to be derived from previous communings in its interpretation.

 

[18]           Lord Craighill considered the ambiguity over the meaning of "from 8^th September" was cleared up by the words "at which date" which immediately followed. He stated that: "at a date or time means from the period when the date or time begins to run. As so used, it contrasts with "on". A thing that is to happen on the day or date may occur at any time within the day or date, but when the occurrence is to happen at a date or at a time, this means, as I think, the opening of the specified period". It was accordingly held the contract had commenced from midnight on the 7^th of September.

 

[19]           Mr Barrowman relies on this case in support of his argument that a lease operating from a certain date contemplates entry "at" that date. If in the present case, the lease had merely stated it ran "from" 29^th April, then I would have held the normal civilis computatio rule to have applied so as to exclude that date from the term.

 

[20]           However, the present lease states: "The date of entry will be 29^th April". Neither the word "on" or "at" is used.

 

[21]           Following Lord Craighill in Mackenzie v Liddell (1883)10R 705, had the lease referred to entry being "on" 29^th April, it is unlikely that would have cleared up the ambiguity in the present case; indeed it is likely the whole day had not been included as entry could have taken place at any time on that date.

 

[22]           Had the word "at" been used, then the lease would have commenced at the beginning of the 29^th April, that is at midnight on the 28^th and the term would have been exactly six months.

 

[23]           Since neither of these words is used, I consider I can either construe the lease simply as meaning it runs "from" 29^th April, in which case it is not for a term of "not less than six months", or I can construe the expression "from" as meaning "from date of entry", inferring that date is to be included in the term.

 

[24]           In my opinion, the specific use of the words "date of entry" in a lease must mean the tenant is contemplated to take entry on that date and accordingly this creates an exception to the general rule excluding the first date from computation of the term.

 

[25]           I differ from Mr Barrowman in that, without them, a lease which runs "from" a specified date commences at midnight the following day.

 

[26]           Since the lease itself does not stipulate a specific time of entry on that date, the normal rule that days are indivisible in accordance with computation of time civilis computatio applies and the lease is deemed to commence at midnight on the 28^th: Stair Memorial Encyclopaedia, vol 22, para. 822.

 

[27]           Accordingly, I interpret the lease in stipulating the term ran from the date of entry on 29^th April 2011, meant it ran from midnight on the 28^th with the result the term of the lease was exactly six months and was correctly constituted as a short assured tenancy.

 

[28]           Actual entry was for less than six months as the tenant entered on the afternoon of 29^th April 2011: but the term was for six months and that is what matters for the purpose of section 32(1)(a) of the Act.

 

Expenses

 

[29]           The parties were agreed expenses follow success. I have so provided.

 

[30]           As this was a defended summary cause, I have ordered those expenses be as assessed and directed the sheriff clerk to fix diets for assessment and approval of expenses.

Coda

 

[31]           It is important for both landlord and tenant to know exactly where they stand. The admonition that contracts be drawn with precision applies here; it could easily have been drawn up to remove ambiguity.