Council tenant’s legal challenge to rent agreement rejected

Court of Session
Court of Session

A council house tenant who challenged an occupancy agreement after falling into arrears, on the grounds that the local authority failed to consider her ability to pay the rent, has had her petition dismissed.

A judge in the Court of Session rejected the challenge after ruling that the petition was barred by “mora, taciturnity and acquiescence” i.e. delay, a failure to speak out or assert rights, and silence or passive assent to what has taken place.

Lord Boyd of Duncansby heard that the petitioner Paula Geuve, a Portugese national who came to this country to find work in 2014, lived at an address in Glasgow under an occupancy agreement with the respondents Glasgow City Council from 27 February 2015.

Under the agreement, the mother-of-one was liable to pay rent of £184.10 per week, which was subsequently raised to £185.71.

When she signed the agreement the terms were read out to her by an interpreter, and she was told that she would have to pay the rent herself.

Between 27 February 2015 and 8 April 2015, Geuve was in receipt of Jobseeker’s Allowance (JSA) of £73.10 per week, but thereafter she was not in receipt of any income from benefits or employment and as a result she accumulated nearly £5,000 in rent arrears.

The tenant received several letters concerning the arrears and a meeting took place at her flat to discuss her situation on 8 June 2015, when a member of the council’s staff and a support worker from Unity were present, and she was told that she would have to pay her rent.

Meanwhile, on 16 June 2015 the council issued a determination under section 30 of the Housing (Scotland) Act 1987 rescinding a decision that they were under a duty to secure the tenant permanent accommodation, on the grounds of a material change in her circumstances as a result of a DWP decision

On 6 July 2015 Shelter’s Housing Legal Team wrote to the council challenging the decision of 16 June to withdraw the provision of permanent accommodation, arguing that the decision was “lawful at the time it was made.”

Subsequently, on 25 November 2015 Geuve entered into a rent repayment agreement with the council, when at that stage the amount outstanding had been reduced to £4850.92.

An interpreter and support worker were present when she entered into the agreement, which included the following provision: “In addition to my normal rent repayment I undertake to pay £10 towards my rent arrears each week… until all arrears are paid in full”.

However, on 2 December solicitors acting for Geuve wrote to the council challenging the occupancy agreement of 27 February 2015 and the petition was lodged later that month.

But the judge sustained the council’s plea that the petition was barred by mora, taciturnity and acquiescence.

In a written opinion, Lord Boyd of Duncansby said: “Mora simply means delay beyond what is a reasonable time. What is reasonable will depend on all the circumstances.

“However on the facts it is more than apparent that there has been delay beyond what might be regarded as a reasonable time even accounting for the personal circumstances of the petitioner. That becomes particularly clear after June 2015 when the petitioner had access not only to a support worker but also to legal advice.

“I also consider that there has been taciturnity by the petitioner. At no time did she challenge her liability to pay rent either herself or through those who were advising her. There was ample opportunity for her to do so and a failure by her to speak out in assertion of what she considered her rights. Mora and taciturnity being established the question is whether the third element of acquiescence or prejudice is also present.

“The essence of the petitioner’s case against the respondents is that they acted unlawfully in charging her rent on the property. It is not clear whether the contention is that she should have been accommodated rent free or whether what is sought is an amelioration of the rates charged under the occupancy agreement of 27 February 2015.

“However the rent repayment agreement proceeds on the basis that rent is due under the occupancy agreement and that, as at the date of the rent repayment agreement, was £185.71 per week. The petitioner had already started making repayment of the arrears at the rate of £10 per week and continues to do so.

“In my opinion it is a clear inference that the petitioner has acquiesced in the respondents’ decision of 27 February 2015 to charge rent. For these reasons I have reached the view that the respondents’ plea of mora, taciturnity and acquiescence should be sustained.”

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