When calculating the period of time under a lease, or other contractual document, care must be taken to specify when the period will start and when it will end. In the absence of clear wording the general principal of civilis computatio, which is that when calculating a period of time, the first day is to be excluded, and the last date is to be included, will apply. In the recent Scottish case of Calmac Developments Limited v Wendy Murdoch (Sheriff Court SD203_11), the court considered this principal in the context of a short assured tenancy.
Calmac Developments Limited were the landlords, and Wendy Murdoch was the tenant, under a lease of a residential property. The lease had come to the end of its term, and Calmac had served the necessary notices to bring the lease to an end.
However, the tenant refused to leave the property, and Calmac raised proceedings seeking her removal, during which the issue of whether or not a short assured tenancy had been created for the purposes of the Housing (Scotland) Act 1988 arose. If the tenancy was a short assured tenancy then the landlord would be entitled to recover possession. If not, the action would be dismissed.
For a tenancy to qualify as a short assured tenancy, it must be "…for a term of not less than 6 months". In this instance, Clause 2 of the tenancy agreement stated that "The Date of Entry will be 29 April 2011. The Let will run from that date until 28 October 2011…"
Calculating the term
The 1988 Act gives no guidance as to how the term of a short assured tenancy is to be calculated. The starting point is therefore to calculate the term of the lease in accordance with the civilis computatio principle, under which, the period from 29 April 2011 to 28 October 2011 equates to one day short of a period of six months. If correct that would mean that a short assured tenancy had not been created. However, an exception to this rule may arise if the specific terms of a lease permit.
In this case, the use of the words “The Date of Entry will be 29 April” meant that the tenant contemplated taking entry on that date, which created an exception to the general rule, because the first day would be included in the term. That made the term of the lease exactly six months and therefore a short assured tenancy for the purposes of the 1988 Act. As a matter of interest, had the lease stated that it ran “from” 29 April, the normal civilis computatio would apply and exclude that date from the term.
Drafting term clauses
This case is a good reminder to take care when drafting clauses about the term of a lease, particularly when, as here, there is a statutory requirement for a minimum period to be provided, but in all documents when a time period is specified, it is crucial to provide clarity so that there should be no misunderstanding or dispute. The clause should state clearly the date on which it is to commence and the date on which the period in question will come to an end.
If a clause is unclear the Courts will give effect to the precise terms of the document and in the absence of any such terms, the general principle of civilis computatio will apply.
To read the decision in the case of Calmac Developments Limited v Wendy Murdoch click here.