Eviction cases based on anti-social behaviour are always difficult and although they invariably turn on their own particular facts and circumstances, it is possible to draw guidance from the approach of the Courts in previous cases.
A recent example is the case of Midlothian Council v Lee Greens.
This was an action for recovery of possession raised on the basis of three grounds: a failure to pay rent or other breach of a tenancy obligation, relevant conviction and anti-social behaviour.
The Defender accepted that grounds for eviction existed in that she had been convicted of being concerned in the supply of drugs. Her position was that it was not reasonable to evict, the basis of that being that both the Defender and her partner suffered from health problems including previous drug addiction and that their five children, in local authority care, wouldn't be returned if they were evicted. The Defender was subject to a Drug Treatment and Testing Order (DTTO) which she was making progress on and which she alleged would be withdrawn if she were evicted.
The Defender, her partner and their respective GPs gave evidence. The Defender did not give any evidence to support the contention that there was engagement and progress with the DTTO. The Sheriff was not impressed by the evidence of the GPs regarding the impact of homelessness and no evidence was given suggesting that there was a realistic prospect of the children being returned.
Sheriff Welsh found that complaints of anti-social behaviour had been made since 2014. The Defender and her partner had engaged in repeated anti-social behaviour by creating excessive noise by shouting and arguing, utilising lawn mowers, hoovers and washing machines late at night and by receiving repeated, late night visits from a variety of persons who attended the property in cars and vans.
The Sheriff granted decree for recovery of possession. He made several comments which will be relevant in future cases, in particular that Scottish Secure Tenancies are 'not invincible'.
There are several points which can be taken from this case.
- Firstly, it will usually strengthen the landlord's case if those directly affected by anti-social behaviour will give evidence although inferences can be drawn from a refusal to do so. A Sheriff will be able to place more weight on first hand evidence. Careful consideration should be given before raising proceedings as to what evidence is available to support your position. Do you have witnesses who can identify what anti-social behaviour has occurred and the source of same? Have you advised the tenant that their behaviour is a breach of their tenancy and offered support. If so, how have you done that and who can tell the Court about that?
- Secondly, in many eviction cases tenants lodge medical reports describing a variety of ailments which their GP anticipates will be aggravated by eviction. Often there is no dispute that a tenant suffers from certain conditions. There is a view in some quarters that illness and poor health are of themselves a bar to eviction. In the absence of evidence from an expert on the effects of homelessness on that particular tenant, the existence of any medical conditions is simply another factor to be taken into consideration when looking at the whole case.
- Finally, Sheriff Welsh commented that 'Chronic illness and drug addiction are not a licence to breach an agreed lease and abuse the neighbours and the neighbourhood. If drug addiction aggravated by ill health were a bar to eviction, s16 (3)(a)(ii) of the Act would be robbed of meaning.' Neither drug addiction nor ill health excuses a tenant from complying with their tenancy agreement. That argument equally applies to actions on the basis of other grounds such as rent arrears or condition of property. The Sheriff's decision echoes similar comments of Sheriff Mann in Shetland Islands Council v Hassan and Aberdeenshire Council v Evans, where he opined that the arguments put forward by the respective defenders (that the convicted defender required stable accommodation and that the convicted defender would be homeless and a burden on the authorities respectively) were held to make it unreasonable to evict then that would rob the legislation of any practical effect.
For more information or advice, please get in touch with our experienced tenancy advice team.