Scottish Sheriff Court Decisions

SHERIFFDOM OF TAYSIDE, CENTRAL AND FIFE AT ALLOA

 

Case No: SD19/12

JUDGEMENT   of   SHERIFF K J McGOWAN   In the cause   PARAGON HOUSING ASSOCIATION LIMITED   Pursuer   against   ELAINE MANCLARK   Defender __________

 

Act: McLaughlin, Solicitor

Alt: Parker, Solicitor

 

Introduction

[1]   In this summary cause action, the pursuer seeks decree of ejection against the defender.

[2]   I heard evidence over two days from Amanda Milne, a housing officer formerly employed by the pursuer; Janice Muir and Sandra McAvoy, both Mental Health Officers with Clackmannanshire Community Health Centre; Anne Stevenson, the defender's next door neighbour; Dr Nabila Muzaffar, consultant psychiatrist, Sheila Norris, the pursuer's housing manager; the defender; Dr Karen Bett, locum consultant psychiatrist; and Mr Michael Martin, an independent social worker and social work consultant.

[3]   I was also referred to inventories of productions for the pursuer and the defender.

[4]   Having heard the evidence and submissions, I made the following findings in fact.

Findings in fact

[5]   The pursuer is a housing association. It is the proprietor and landlord of a substantial number of dwellinghouses in the Central Region area, including a dwellinghouse at 63 Rosebank, Sauchie ("the subjects"). The defender is the tenant of the subjects under a Scottish Secure Tenancy Agreement dated 12 March 2004. The defender has been the sole tenant of the property since 21 May 2010. Prior to that she was the joint tenant with her husband.

[6]   The defender has failed to maintain the property and adjoining garden in good condition. There have been issues with the defender's upkeep of it of which Miss Norris has been aware since about 2005 or 2006.

[7]   By late 2008, the defender (and her husband as the then joint tenant) had been given notice of proceedings for recovery of possession. By letter dated 22 December 2008 the defender was warned that a failure to make improvements to house and garden of the subjects would result in legal proceedings being taken them to terminate the tenancy: Production P3/1. An inspection proposed by the pursuer as a follow up to that letter did not occur as the defender did not allow the pursuer's housing officer access to the property.

[8]   The pursuer uses an organisation called The McDougall Group ("TMG") to carry out maintenance of its housing stock. In February 2009, the defender refused to allow access to the subjects by tradesmen from TMG. TMG also reported concerns about the condition of the subjects to Ms Norris: Production P3/2.

[9]   In March 2009, the pursuer received an enquiry from a local councillor, Derek Stewart, about the condition of the garden of the subjects (Production P3/3). While some items were removed, the pursuer had to take steps to organise the removal of other items and re-charge the defender for the cost of the necessary work.

[10]By January 2010, the condition of the subjects was such that the pursuer gave notice to the defender for recovery of possession under section 14 of the Housing (Scotland) Act 2001 ("the 2001 Act"). For reasons that are not entirely clear, that notice was not followed through.

[11]The defender has a longstanding history of mental illness. In about mid 2011, she was admitted to Forth Valley Royal Hospital under a compulsory treatment order ("CTO"). She was diagnosed at that stage of suffering from paranoid schizophrenia.

[12]By October 2011, the pursuer had reached the view that the defender had failed to bring the condition of the subjects to an acceptable standard. A further notice of proceedings for recovery of possession was served on her on 25 October 2011: Production P2/2. That notice was served on her in hospital.

[13]         The defender responded well to treatment in hospital. Her condition stabilised. She was taking appropriate medication.

[14]         In March 2012, the Mental Health Tribunal varied the CTO from one with measures for detention and treatment at hospital to a CTO with measures for treatment in the community.

[15]         Thereafter, the defender remained in hospital on a voluntary basis for a few weeks. At the end of that period, she discharged herself contrary to medical advice and returned to reside in the subjects.

[16]         There have been attempts by a variety of agencies and persons to assist the defender with the upkeep of the subjects. She has had assistance from the minister at her Baptist church and from a Mormon group. In particular, she has been offered assistance by Janice Muir and Sandra McAvoy, in their role as mental health officers.

[17]         The defender has accessed funding to enable her to carry out repairs to the subjects. Those repairs have not been carried out and the money has been expended on other things such as a mobile phone.

[18]         The pursuer has made a number of attempts to get cleaning contractors into the subjects. The defender has not co-operated with this process.

[19]         A feature of the defender's illness is that she does not recognise that she is ill. Moreover, she tends to be paranoid and suspicious. She has resisted and would be likely to continue to resist to attempts to help her tidy the subjects which are full personal items belonging to her. The removal of such items would be a prerequisite of a proper assessment of the condition the subjects and of the remedial works necessary to bring them up to an appropriate standard.

[20]         The property has deteriorated and is in a poor condition. It is dirty, cluttered and only the kitchen, bathroom and one bedroom are habitable. The house is malodorous, probably as a result of the floor being contaminated with dog urine and/or rabbit faeces. Some or all of the floorboards need to be replaced or sealed.

[21]         The three internal doors upstairs have been damaged beyond repair. There are holes in the floorboards on the landing. There are internal doors missing from downstairs rooms. Two upstairs front windows and the glazing in the lower part of the front door were smashed some years ago and have been boarded up since. The living room is inadequately carpeted, leaving bare boards exposed.

[22]         The garden is overgrown and weed-ridden. Although cut shortly before the proof diet, the grass has been cut only twice in the last two years. The garden is often contaminated with rubbish such as tins, newspapers, plastic bottles and cigarette butts.

[23]         By reason of her mental illness, the defender finds it difficult to plan and execute activities such as garden or house maintenance. If the defender remains in the subjects, it is likely that they will deteriorate further. The defender is not likely to co-operate with the pursuer or any other agencies who seek to assist her in maintaining and improving her property.

[24]         The subjects are an "eyesore" locally. They tend to be a magnet for anti-social behaviour by children living locally, from which the defender and her neighbours then suffer. The tenant of the neighbouring subjects at number 61 Rosebank, Mrs Stevenson, has attempted to arrange a "house swap" (swapping her tenancy of number 61 with a tenant who lives elsewhere). Potential "swappers" are put off as soon as they see the condition of the subjects.

[25]         The subjects could not be re-let as they are and now require extensive remedial work. Some, but not all, of that remedial work is due to neglect on the part of the defender.

[26]         The subjects are not really a suitable property for the defender to live in. It is beyond her capabilities (as a result of her mental illness) to look after it. Sheltered accommodation would be more suitable for the defender. Arrangements for the defender to take up residence in sheltered accommodation in Falkirk where support would be provided by the Scottish Association for Mental Health were put in hand in the middle of 2012. These reached an advance stage but were cancelled by the defender.

[27]         An enforced move may impact on the defender's mental health. However, if she stays in the subjects, it is equally possible that her mental health will be affected by the stresses of living there and of the conflict with the pursuer as her landlord and her neighbours. It is also likely that the property will deteriorate further. It is likely that environmental health concerns will arise. That may impact on the defender's physical and mental health. The better long term plan is for the defender to be moved to more suitable accommodation.

Grounds of Decision

The issues

[28]         It was not suggested that the procedural requirements of Section 14 of the Act had not been complied with.

[29]         Recovery of possession is sought in this case under Ground 3 of Part 1 of Schedule 2 of the Act, which provides:

"The condition of the house or of any of the common parts has deteriorated owing to acts of waste by, or the neglect or default of, the tenant (or any one of joint tenants) or any person residing or lodging with, or any subtenant of, the tenant; and in the case of acts of waste by, or the neglect or default of, a person residing or lodging with, or subtenant of, a tenant, the tenant has not, before the making of the order in question, taken such steps as the tenant ought reasonably to have taken for the removal of that person."

 

[30]         The relevant part of Section 16 of the Act provides that:

"(2) ...in proceedings under section 14 the court must make an order for recovery of possession if it appears to the court-

(a)that-

(i)the landlord has a ground for recovery of possession set out in any of paragraphs 1 to 7 of that schedule and specified in the notice required by section 14, and

(ii) it is reasonable to make the order,

(3)For the purposes of subsection (2)(a)(ii) the court is to have regard, in particular, to-

(a)the nature, frequency and duration of...the conduct taken into account by the court in concluding that the ground is established...

(b)the extent to which that conduct is or was conduct of, or a consequence of acts or omissions of, persons other than the tenant,

(c)the effect which that conduct has had, is having and is likely to have on any person other than the tenant, and

(d) any action taken by the landlord, before raising the proceedings, with a view to securing the cessation of that conduct."

 

[31]         It was common ground that there were two matters to be determined:

a.     Could it be said that the property was in a condition that satisfied Ground 3 of Part 1 of Schedule 2 of the Act?

b.     If so, was it reasonable for the order for ejection to be granted?

Condition of Property

Submissions

[32]         Mr McLaughlin submitted that the evidence showed that the house was in poor condition as a result of the defender's neglect. Miss Parker submitted that there was no evidence of actual structural damage to the house.

Discussion

[33]         The defender's own evidence was that the doors in the upstairs part of the property had been damaged beyond repair (she said by the behaviour of her pet dog Muffin, now deceased).

[34]         In my view, a tenant allowing a pet to cause that kind of damage to property can be said to be neglect. Ms Parker's argument appeared to be that the doors themselves did not form part of the building. She said that the door facings were, but the doors themselves were not. I think that is wrong. The classic test in Scots property law is the distinction been moveables and fixtures and fittings. Fixtures and fittings are items which do not have a function or purpose in their own right if removed from the heritable property to which they are attached. On that approach, it is plain that internal doors are fixtures and fittings and as such form part of the house.

[35]         In any event, the question is a broader one: has the condition of the house deteriorated? If so, is that due to neglect on the part of the defender? The condition of a house can be said to have deteriorated even if there is no structural damage.

[36]         It is a question of fact and degree in each case, but graphic photographs have been produced showing the internal (and external) condition of the subjects at various times. I accepted the evidence of Ms Milne and Ms Norris as to the condition of the subjects when inspected on the first day of the proof, both of whom described the house as being smelly, dirty, cluttered and in poor condition.

[37]         It is true that the mere presence of dirt or dust or clutter will not suffice. But equally, even if there is neglect of day to day cleaning and maintenance, there comes a point when the condition of a house will deteriorate to an extent which cannot be remediated simply by intensive cleaning.

[38]         In the present case I am satisfied that looking at the evidence as a whole, it has been proved that the condition of the property has deteriorated and that that deterioration is owing to neglect or default on the part of the defender.

Reasonableness

Submissions

[39]         On behalf of the pursuers, Mr McLaughlin submitted that it was reasonable for decree to be granted. The court should have regard to the nature, frequency and duration of the defender's conduct. Proceedings for recovery had first been contemplated in 2009. The pursuers had shown a lot of patience.

[40]         It was clear that the property was not really suitable for the pursuer's needs. It could not be said that it was unreasonable for the order sought to be granted.

[41]         Ms Parker submitted that the defender was a vulnerable adult with mental health issues. There was evidence that a forced move of accommodation might cause a relapse. The defender had recently been released from hospital and needed a safe environment. She loves the house.

Discussion

[42]         Section 16(3 requires that I have regard to certain specified matters.

the nature, frequency and duration of the conduct taken into account by the court in concluding that the ground is established

[43]         The level of neglect is high. The conduct has been going on for a number of years. The house has deteriorated over that time and continues to deteriorate. The situation is ongoing.

the extent to which that conduct is or was conduct of, or a consequence of acts or omissions of, persons other than the tenant

[44]         The defender was formerly a joint tenant, so to that extent she was perhaps not solely responsible for the subjects falling into disrepair. But she remained jointly responsible and has been a sole tenant since May 2010.

the effect which that conduct has had, is having and is likely to have on any person other than the tenant

[45]         The pursuer has an interest in preserving the condition of their housing stock, including the subjects. If the house is allowed to continue to deteriorate, it will be they who have to bear the cost of renovating it. That cost is likely to be substantial and irrecoverable.

[46]         The defender's neighbours are also affected. The subjects are an eyesore. Their condition affects the amenity of the street and impacts both directly and indirectly on those living there. The subjects are an eyesore which, apart from any aesthetic issues, attract anti-social behaviour.

any action taken by the landlord, before raising the proceedings, with a view to securing the cessation of that conduct

[47]         The pursuer made extensive efforts before raising proceedings to have the defender implement her contractual obligations to maintain the property. The defender has not co-operated with the pursuers.

Conclusion and disposal

[48]         I require to balancing the respective rights and interests of the parties and other people affected. The defender will be affected if an order for recovery of possession is granted. But the subjects are not really suitable for her. Maintenance of the garden is beyond her - as is getting the subjects cleared out sufficiently to allow a proper survey to establish what remedial work needs to be done. If she stays, there is likely to be ongoing conflict with the pursuer as her landlord and the defender is likely to remain the target for anti-social behaviour. This will continue to affect her neighbours.

[49]         I accept that there is a risk to the defender's mental health if she is moved. Naturally, it would be better if that process were voluntary, planned and managed. But it seems that the defender is not likely to co-operate with such a process. I accepted the evidence of Dr Muzaffar about the likely effect on the defender if she stays where she is.

[50]         Looking at the whole circumstances, I have concluded that it is reasonable for the order sought to be granted.

[51]         Accordingly, I shall propose to find the pursuers to be entitled to an order for recovery of possession of the subjects. I shall put the case out for a further hearing to discuss

a.     the form of the decree to be granted;

b.     whether extract should be superseded and if so for how long; and

c.     expenses.

 

(sgd.) "K J McGowan"

Sheriff