Livingston sheriff rules son of public sector tenant did not enter new oral tenancy with landlord

About this case:

• Citation:
  [2025] SC LIV 101
• Judgment:
  External link
• Court:
  Sheriff Court
• Judge:
  Sheriff James Macdonald

Almond Housing Associations Ltd sought recovery of subjects at Morlich Walk, Livingston, from defender John Docherty on the basis that he had no right or title to remain in the property. At proof, the defender relied on an argument that a new Scottish Secure Tenancy could be inferred from the facts and circumstances of the case.

The case was heard by Summary Sheriff James Macdonald, with Way, advocate, appearing for the pursuers and Young, advocate, for the defender.

Violent profits

From November 2019 to 16 July 2023, the property was occupied by the defender’s mother as a tenant, with the defender residing with her during that period. The property was adapted to be suitable to wheelchair users, with a ramped access and a wet room bathroom. When the defender’s mother passed away, he sought to succeed to the tenancy on the basis that he had special needs requiring the type of adaptations provided by the property.

On 9 August 2023, the pursuers wrote to the defender to inform him that he was not entitled to remain in the property and offer him alternative accommodation. Court proceedings were then raised on 9 November 2023. From December 2023 onwards, the defender made payments to the pursuer in respect of the property, but the pursuers’ housing officer advised that, until the matter of succession was determined by the court, any such payments were an occupancy charge treated as a violent profit account.

It was agreed by the parties that a written agreement would not be necessary to form a Scottish Secure Tenancy, with the defender inviting the court to conclude that the terms of telephone conversations he had with employees of the defender demonstrated that the parties had reached agreement. The use of the phrase “occupancy charge” by the pursuers was synonymous with rent, and the reference to violent profits was an afterthought which only started to occur months into their correspondence.

For the pursuers it was submitted that no consensus had been reached on a tenancy. The pursuers made clear in their letter of August 2023 that they did not accept the existence of a tenancy. The more belligerent stance of the defender in later telephone calls, in which he insisted he be allowed to pay his “rent”, showed a recognition that he was aware that the pursuers were not accepting a liability to pay rent.

Most compelling alternative

In his decision, Summary Sheriff Macdonald began by comparing the requirements of a lease at common law and under the Housing (Scotland) Act 2001, saying: “The most obvious distinction between the statutory and common law requirements is the absence of specific reference in section 41 of the 2001 Act to ‘rent’. Nevertheless the approach adopted by the parties to payments made and their purpose helps to inform of their true intentions and whether they had reached consensus in idem.”

He added: “Peaceful occupation of the property may permit an inference of the existence of an agreement between the parties. In the present case however, I do not consider that the Defender’s occupation has been tolerated by the Pursuers. Within a matter of a few weeks of the death of the tenant in 2023, the Pursuers had written to the Defender setting out clearly that their lack of acceptance of his succession to the tenancy, offering him alternative accommodation, requiring him to vacate the property and threatening court action if he did not.”

Considering whether the defender’s payments did amount to rent, the sheriff said: “The Defender’s payments have not been consistent. If this was payment of rent as he avers it was, then he would be in arrears. In particular, several monthly payments were missed during 2023. I accept Mr Way’s submission that the Pursuers had no control let alone a power of veto over the payments made on behalf of the Defender from Universal Credit or by way of Discretionary Housing Payments.”

Turning to the use of the term “violent profits”, he went on to say: “If therefore an ‘occupancy charge’ is distinct from a rent payment, it seems to me that the most compelling alternative classification in law for an ‘occupancy charge’ is a payment towards violent profits as the Pursuers suggest. Further, there is material to suggest that the Defender was aware that the Pursuers were not prepared to accept his proposition that he was paying rent for the property.”

Summary Sheriff Macdonald concluded: “On several occasions where the Defender, in the face of a clearly articulated position by the property’s heritable proprietors to the contrary, sought to pay rent for the property, the Pursuers have countered by challenging the use of the word ‘rent’ and substituting their own phrase. It is important to view the approach taken by the Pursuers as a whole. Set in the context of communicating clearly at an early stage that the Defender had no right or title to occupy, backed up with court proceedings for recovery, the payments accepted by the Pursuers thereafter from the Defender cannot be construed in my judgement as rental payments.”

Having concluded that the defender had no right or title to occupy the property, the sheriff granted decree as claimed by the pursuers.