A year ago I organised some repairs to the communal parts of the tenement I live in. All the other owners while incapable of organising the repairs were happy enough to pay up once I organised repairs to their property for them. Except property shark Brian Porteous who trades as BJP Properties. Rather than maintaining the property he manages he did some superficial patches on the repairs needed and put his property on the market. He chose not to reply to any contact from any other owner. So in the end I had to sue him by filing a small claims summons.
Scottish courts are not known for their up to date technical know how. You can download the form for small claims summons on the website in proprietary MS Word format. The form badly needs a proofread by the Clear English Campaign, it uses a large amount of legal jargon including places where two obscure terms can mean the same thing. Having printed it off twice I took it into the Clerk to the Small Claims Court and paid the Â£16, very good value for the service I received.
Some weeks later a letter arrived with a date some weeks in the future. I put all my papers into a folder in a sensible order and went to court on the day. At the Sheriff Court there is minimal notice or information from anyone about what is going on. From a textbook I read once I assumed small claims courts were pretty informal affairs without lawyers but in the court room everyone was wearing gowns and we had to stand for the sheriff who was in his wig. They called up the cases one by one and the gowned lawyers kowtowed to “your honour” and explained their cases, mostly why their clients had decided to drop them. Eventually I got called up and asked what I wanted. Did I want a decree? I said I wanted the court to order him to pay the money I was owned, which turned out to be the same thing. However he had not turned up so the sheriff said in fairness they should reschedule for another date in a few months’ time.
In a few months’ time I was back in the same courtroom as another sheriff went through cases with gowned lawyers until there was just me and a fat man in the seats. The sheriff called us forward and asked if we’d like to go for mediation. I said I’d never had a chance to speak to him despite living next to him for 8 years sharing communal property. Brian said he had this letter from his lawyer and wouldn’t that be enough proof? No it would not said the sheriff, it would need to go to proof if he wanted to argue his case. So we got a date for proof in a few months’ time. In all the forms I had filled in nowhere had it mentioned that the date we got was only a preliminary hearing, sensible enough but seems everyone was confused.
By this time I’d collected some more friendly confirmations from my neighbours and I’d looked up a few more laws and I put together all the papers in a nicer file and handed in copies in triplicate to the court.
A few months’ later I went to the same court and watched a bit of a case involving a car accident, a man was in the witness stand describing what had happened as he drove round a roundabout. After a bit the sheriff called me and Brian Porteous foward and said they wouldn’t have time for us today so we got another date in a few months’ time. The same thing happened a few months’ later.
A few months’ later again I had my day in court, which was delicious. The sheriff had me take the witness stand and asked me about the case. He spent some time getting the whole story of everything I had done and the number of times I had given Brian Porteous time to respond. Then Brian got to question me. He chose to ask if I knew his flat was empty, I said I had no idea as it was not my flat so not my concern.
Then Brian took the witness stand and the sheriff took him through his understanding of the case. I got to quiz Brian on what his understanding of the communal property was and how he expected to maintain it. He said he thought I was in a better place to maintain it as I was living there and I questioned what that meant he did as the director of a property maintenance company. I questioned why his son had not passed on the many e-mails I had sent them and if that meant he was an incompetent property agent. He said he would expect the council to do repairs and I questioned why he expected someone else to maintain his property for him. I also questioned why he had not updated the private landlord registrar, which he said he did not know of any law that required him to.
Finally I got to take the sheriff over the statute law I had dug up which implicated him. I pointed out the Housing Act and the Tenement Act which both require a landlord to maintain their property and I pointed out the Antisocial Behaviour act which require a landlord to update the landlords register. The sheriff said we would receive judgement in the post and scooted off. Brian then asked me “as a man” to take down my previous blog post calling him and his son a property shark. I said I would not as he had shown no indication he needed to maintain the property owned by his property maintenance company. He said he’d call the police and I wished him luck with that. I thanked him for giving me this opportunity to learn lots of the law and what an interesting process it was at which point he made some excuse and walked in the opposite direction.
And then silence, the judgement didn’t come. I popped into the clerk’s office (a hassleful procedure since you need to give up all your power cables at the court entrance presumably in case you garotte someone with the power cable, or maybe try to set anarchy lose by using a non-PAT appliance) but the clerk’s just said it was with the judge. After 2 months I wrote a letter to the judge and a few days later a judgement came in the post.
And alas I lost. The judgement said that Brian had “never had a key giving access to the common stairwell” but I don’t see how this is relevant, if he is incapable of looking after his own property that should not be my concern. And “there is no evidence to indicate that the defender had knowledge of a concluded agreement” but I e-mailed his agent (who is also his son and neighbour). “at best the evidence indicated that cruz property management were e-mailed the quote” well yes, they were his agent, how else was I supposed to contact the guy? “The pursuer is misconceived in his reliance upon the Housing Act and Tenement Act” which in the sheriff’s reading don’t make the landlord liable to me (presumably only to and tenants he rents out to). “The sum sued for is so low that it falls beneath the limit where expenses can ordinarily be awarded”.
This is disappointing but I’m very pleased at putting in a good performance in court, public debate and confrontation is not something I’ve often been very good at but here I held my own under pressure. I learnt about the legal process which was interesting. It is very slow and clunky and not user friendly at all, it feels a lot like the processed is designed so trained lawyers know what’s going on by laypeople find it too daunting to use. Many basic details are not explained anywhere in the application process such as the 2 stage nature of it (initial review then going to proof) or the limits you can claim for expenses etc. Scotland (or at least Edinburgh) badly needs a law which gives tenement owners a duty to the other owners to maintain the property, currently my flat has leaks in the roof which nobody has bothered to fix and nobody seems even capable of looking at them. (How can you be a property agent when you are scared of heights and can’t even look at the roof?) I hope Brian Porteous learnt something about his need to maintain his property but I doubt it.