One of the most significant changes being proposed under the Housing (Scotland) Act 2014 is the removal of the "reasonableness" defence where a landlord seeks eviction based on the tenant being the subject of a conviction in respect of a criminal offence committed in or in the locality of the tenancy. How difficult will it be to evict a drug dealing tenant?
Many eviction actions have been raised using this ground, mainly in connection with offences relating to illegal drugs.
Many Registered Social Landlords (RSLs) have a 'zero tolerance' policy towards illegal drugs and eviction will be sought when a tenant is convicted of any offence under the Misuse of Drugs Act 1971.
A recent judgement from Glasgow Sheriff Court dealt with the question of 'zero tolerance' and reasonableness.
Glasgow Housing Association sought to evict a tenant who had been convicted of cultivating cannabis plants within his tenancy. The tenant plead guilty to the offence and was fined £300. The court was asked to grant the eviction order based on the landlord's zero tolerance policy.
In a lengthy judgement Sheriff Reid refused to grant the eviction order. He held that it was not reasonable to grant the order. There was no dispute that the ground was established. The sheriff also took the view that other grounds for eviction were also established.
However, the sheriff took the view that it was not reasonable to grant decree. This offence was at the lower end of the scale of criminality, involved single small scale cultivation by a first offender and drugs of no material quantity or value. The criminal conduct was limited in duration and isolated in frequency. It caused no actual nuisance to anyone. While a 'zero tolerance' approach may well be admirable as a social policy, it had to be exercised with discretion and that a court could not be bound by such a policy.
The sheriff referred to many other judgements in which eviction orders were granted. However, these cases involved much more serious offences.
When the 2014 Act comes into force, the considerations in this judgement will no longer apply. The removal of the reasonableness test will, however, not affect "any other rights that the tenant may have by virtue of any other enactment or rule of law".
The Human Rights Act 1998 requires that any decision which will interfere with a tenant's rights to respect for their private life and home must be "proportionate". Defences currently based on reasonableness will likely become defences based on proportionality. If so, Sheriff Reid's decision is likely to be utilised by many tenants.
Landlords should note that in the vast majority of eviction cases raised on these grounds, the court will grant eviction if the criminal offences are of a serious nature. The courts will not simply 'rubber stamp' the landlord's decision to pursue eviction.
If you would like advice on how to evict a drug dealing tenant, please contact our court team.
