Appellants Peter Large and Maria Lander owned a property on Victoria Road, Glasgow, that had been let to respondent Jean Thomson since 1985. They argued that the FTS had misapplied the relevant legislation and added additional criteria to the eviction ground not provided for by law.

The appeal was heard by Sheriff Iain Fleming of the Upper Tribunal. Representation for the appellants was provided by Raeside Chisholm, solicitors, while the respondent represented her own interests.

Conduct showed bias

Although there was no formal written lease, it was found by the FTS that the property had been let to the respondent in 1985 and that the tenancy was regulated by the Rent (Scotland) Act 1984. The appellants purchased the property subject to the tenancy at auction, and Mr Large told the FTS in evidence that he had planned to allow the tenancy to run a decent notice period before evicting the respondent and moving in with Ms Lander to start a family.

The basis of the action for eviction was ground 8A, amended into the 1984 Act by the Cost of Living (Tenant Protection) (Scotland) Act 2022, namely that the landlord intended to alleviate their own financial hardship by moving into the property for at least three months. In evidence, the landlords outlined debts owed to HMRC, Santander, and others totalling around £30,000, with a further £154,000 owed to Mr Large’s parents to repay a loan from them.

While it was concluded by the FTS that the appellants were suffering financial hardship, it determined that it was not reasonable to issue an eviction order, taking into account the uncertainty of the appellants’ financial position, the age of the respondent, and the fact that she had a degree of security of tenure in that the ground of eviction relied upon was not available until the 2022 Act came into force.

It was contended by the appellants that the conduct of the FTS had shown bias against them and thus been in breach of Article 6 ECHR. Their position had been fully vouched while the respondents had not, and as such her evidence should have been given less weight. A second ground of appeal proposed that the FTS had misapplied the 2022 Act and its investigation into the extent of the appellants’ financial hardship was an error in law.

For the respondent it was submitted that her position was not unvouched, there being no dispute with regards to the tenancy agreement. The respondent’s living situation and the appellants’ plans for the future could not be considered as the same.

Relevant considerations

In his decision, Sheriff Fleming said of the appellants’ Article 6 case: “In so far as the Article 6 point is concerned, it relies firstly upon the absence of the lease. There is no question other than that the respondent is present in a property owned by the appellants. The respondent and her family occupy the property and are there as tenants. The appellants are the landlord. The existence of the lease or indeed its terms are not in dispute and rent is clearly being paid. The point about the absence of a lease was not a live issue before the FTS.”

He continued: “The suggestion that more weight should be given to evidence which is supported by documentary evidence, or perhaps better put less weight should be given to evidence which is not supported by documentary evidence, would be to invite the Upper Tribunal to trespass upon the function of the FTS which is to consider and analyse the evidence and attach such weight as it thinks fit. Lest the Upper Tribunal’s position should be misunderstood, there is no substance whatsoever in the proposition that simply because evidence has to be vouched that it necessarily will attract greater weight than such evidence as is not vouched.”

Assessing whether the FTS had erred in law, Sheriff Fleming said: “In considering the question of reasonableness the FTS applied weight to the uncertainty of the appellant’s financial position. It was entitled to do so. Further the FTS was entitled to consider the extent of the financial hardship in determining that the appellants’ financial position was uncertain. The FTS is obliged to consider all relevant circumstances as they exist at the date of the hearing and the extent of the appellants’ financial hardship is one such circumstance.”

He concluded: “In the context of reasonableness the FTS was entitled to consider the length and nature of the tenancy which had previously provided the respondent with security of tenure. The FTS was also entitled to consider that the security of tenure could not be challenged in terms of Case 8A until the statutory amendment. Put differently, the respondent had enjoyed security of tenure for a lengthy period until the law changed. All of these considerations are relevant in the consideration of whether it is reasonable to issue an eviction notice.”

Sheriff Fleming therefore concluded that no error in law had been made, and refused the appeal.