The First-tier Tribunal for Scotland (Housing and Property Chamber) (FTT) "recently considered the duration of a short assured tenancy in the case of Prestel & Dunbar v Norton (EV/18/1089)."
In this case parties entered into a tenancy agreement on 21st July 2017. An AT5 was served on the same date, before the tenancy agreement was signed. On 17th November 2017, the landlord served on the tenants a Notice to Quit and a Notice under Section 33(1)(d) of the Housing (Scotland) Act 1988, requiring the tenants to vacate the property by 20th January 2018. The tenants failed to remove themselves from the property and the landlord raised an action to recover possession under Section 33 of the Housing (Scotland) Act 1988 on the basis that the short assured tenancy agreement had reached its ish (end date), tacit relocation was not operating and no further contractual tenancy was in place.
Before granting the Order, the Tribunal required to be satisfied that the tenancy was a short assured tenancy. One of the conditions for creating a short assured tenancy is that it "is for a term of not less than six months." The lease provided:
"The tenancy will commence on 21/07/2017 ('the start date') and will end on 20/01/2018 ('the end date')."
The Tribunal wished to be addressed on whether or not the lease was for a period of six months as it appeared to be one day short.
This issue has been considered in the Sheriff Courts before jurisdiction over such matters transferred to the FTT on 1st December 2017.
Generally, Scots Law applies the civilis computatio method of calculating time being that the first day is excluded but the last day is included in the tenancy term. Using this method the current lease would be one day short of six months. However, in McCabe v Wilson (2006 Hous. L. R 86) the court held that it was "perfectly legitimate for parties to enter into a lease" on the basis that the whole of the first day was to be deemed part of the period of let. Further, in Calmac Development Limited v Wendy Murdoch 2012 WL 3062547 the Sheriff looked to the wording of the lease to establish whether parties intended the first day to be included. In that case the lease stated "the date of entry will be 29th April 2011" and the Sheriff took the view the tenant "contemplated to take entry on that day" which created an exemption from the general rule excluding the first day.
Applying the McCabe and Calmac cases, the Tribunal determined the duration to be "exactly six months". The Tribunal considered the words 'start date' and 'end date' provided for an exemption to the general rule. Additionally, the Tribunal considered the references to "a short assured tenancy in terms of Section 32" throughout the lease made it clear that the term was of not less than six months.
Accordingly the tenancy was a short assured tenancy. The Applicant had served the appropriate notices and an order for recovery of possession was granted.
While the Tribunal is not bound by Sheriff Court precedent, such decisions are certainly persuasive thereby allowing a similar approach to interpretation of the duration of a lease where there is dubiety.