Siblings Gerard and Katrine Boyle sought to challenge their eviction by landlord Lorraine Ford on the grounds that the First-tier Tribunal had mischaracterised the nature of their tenancy and erred in its assessment of the reasonableness of granting an eviction order. They argued that the tenancy they had was a continuation of a short assured tenancy previously granted over the property as permitted by the saving provision of the 2016 Act.

The appeal was heard by Sheriff George Jamieson of the Upper Tribunal. The appellants represented themselves and D Anderson, advocate, appeared for the respondent.

Substantially the same

In October 2010, the appellants entered into a lease with the respondent’s late husband, Hiram Ford, in respect of a house at Robertson Court, Armadale. A short assured tenancy in respect of the property was later created in October 2017. Mr Ford died intestate in November 2017 and the respondent became his executrix-dative. By written agreement dated 1 October 2018, the parties made a new tenancy agreement also labelled as a SAT.

On 22 July 2020, the respondent served a notice to leave on the appellants in terms of the Private Housing (Tenancies) (Scotland) Act 2016 on the ground that she wished to sell the property. An application for an eviction order was made to the FtT in April 2021. The property was disponed to the respondent in October 2021, and she was registered as the proprietor of the property in the Land Register of Scotland.

It was argued by the appellants that their tenancy was not a private residential tenancy within the meaning of the 2016 Act, as determined by the FtT, as it fell within the effect of regulation 6 of the Private Housing (Tenancies) (Scotland) Act 2016 (Commencement No. 3, Amendment, Saving Provision and Revocation) Regulations 2017. The 2018 tenancy had come into being at the ish of their previous SAT and was substantially the same as their previous one, and the respondent could not be treated as an individual who was entering as a new party to the lease as she was the landlord’s successor in title.

The appellants further submitted that the FtT had not considered the difficulties they might have in being rehoused to be a reasonable ground to refuse the granting of an order. Both of them suffered from serious health problems that would make the granting of an order for possession unreasonable, and the FtT had been wrong to take the opposite view based on a perception that Mr Boyle had indicated in his evidence a volition to move in spite of those conditions.

Understanding of significance

In his decision, Sheriff Jamieson said of the nature of the agreement: “The question for determination by the UT is whether the parties to this later agreement dated 1 October 2018 were the same landlord and the same tenant as in the previous agreement. As the landlords were on the face of each agreement different, the answer to the question would be no but for section 55 of the Housing (Scotland) Act 1988, unless section 55 does not apply. If section 55 applies, then the ‘landlord’ would include the respondent as a person deriving title to the property from the original landlord, her late husband.”

He continued: “So long as there exists the possibility of a different configuration of landlord and tenant, whereby one of the parties to the tenancy agreement has not derived title from an original tenant or landlord, then the UT is not in my opinion required to disapply the definitions of landlord and tenant in section 55 of the 1988 Act. I accordingly conclude that the tenancy agreement entered into between the parties was a short assured tenancy.”

Addressing the reasonableness of granting an order, the sheriff said: “It is apparent from Mr Boyle’s submissions to the UT that he had an insufficient understanding of significance of the concept of reasonableness when he appeared before the FtT. Rather than Mr Boyle expressing a ‘volition’ to move from the property, he was expressing his belief that there was no other option available to the FtT. The FtT should not have interpreted Mr Boyle’s evidence in the way that it did. When asked about the matter by the UT, it was evident Mr Boyle was not expressing a ‘volition to move’.”

He concluded: “The FtT placed undue weight on this alleged factor. It made no attempt in its decision to identify all of the relevant circumstances, both favouring granting and not granting an order for possession, and to weigh those in the balance in assessing the reasonableness of granting such an order. Instead, it concluded that [there] were ‘not reasonable grounds to refuse the granting of an order’. This reversed the statutory test and effectively placed an onus on the appellants to show reasonable grounds for the FtT to refuse the granting of an order for possession.”

The sheriff therefore quashed the decision of the FtT and remade it to refuse the application for an eviction order.