A housing association tenant whose application to purchase her home under “right to buy” legislation was refused has had her appeal against the decision dismissed.

The Inner House of the Court of Session upheld a ruling of the Lands Tribunal for Scotland to the effect that the application was “incompetent” because the right to buy was suspended until 2022.

Right to buy

The Lord President, Lord Carloway, sitting with Lord Brodie and Lord Glennie, heard that from about 1991 the appellant Michelle Caven was a tenant under a secure tenancy of a property at 69 Stakeford Street, Dumfries, which was owned by Dumfries and Galloway Council until a stock transfer to the respondent Irvine Housing Association in 1999.

Four years later she moved to a larger home owned by the respondent at 28 Goldie Crescent, but her tenancy remained a secure tenancy and her right to buy was preserved.

However, the new Scottish Secure Tenancy Agreement that she signed brought the tenancy at Stakeford Street to an end and created a new tenancy at Goldie Crescent, meaning her previously preserved right to buy came to an end; and thereafter she simply had the “modernised” right to buy introduced by the Housing (Scotland) Act 2001.

In November 2015 the appellant applied to her landlord to purchase her house at Goldie Crescent, purporting to exercise her right to buy in terms of section 61(1) of the Housing (Scotland) Act 1987.

Incompetent application

By letter dated 16 November 2015 the respondent refused that application on the ground that, although the tenancy was a “Scottish secure tenancy” and the appellant, as tenant, had the right to buy the house under the provisions of the “modernised” right to buy, that modernised right to buy could not be exercised until 30 September 2022 at the earliest, and accordingly the appellant’s application to purchase the house could not be processed “at this time”.

The appellant applied to the Lands Tribunal for a finding that she had a right to purchase the house under section 61, but the tribunal dismissed that application as incompetent.

The tribunal held that the right to buy was suspended until 30 September 2012 pursuant to section 61A(3)(a) of the 1987 Act and for a further period of 10 years (until 30 September 2022) granted by Scottish Ministers on the application of the respondent under section 61A(4).

Accordingly, at that time the appellant had no right to apply to purchase the house; and the application was therefore incompetent.

Appeal rejected

The appellant appealed to the Court of Session against the tribunal’s decision, but the judges refused the appeal.

Delivering the opinion of the court, Lord Glennie said: “This is an appeal from a decision of the Lands Tribunal made upon an application by the appellant under section 68(4) of the 1987 Act. In reaching its decision the tribunal was concerned with the proper application of the various statutes and statutory instruments to the facts as presented to it.

“The application by the appellant was based upon there being a tenancy of 28 Goldie Crescent; she contended that she had a right to buy that property on the basis of her tenancy thereof. That was an essential part of her case, and the tribunal could not proceed on the basis that the validity of that tenancy was in dispute, even if only as a stepping stone to casting doubt upon the termination of the tenancy over 69 Stakeford Street; indeed any dispute as to whether the Goldie Crescent tenancy was in some way defective would have undermined the very right (the right to buy that property) which the appellant was seeking to assert.

“Further, if and insofar as the matters complained of by the appellant might be said to cast any doubt upon the appellant’s tenancy of 28 Goldie Crescent, and we express no view about the merits of any such argument, they would not render that tenancy null and void – at best for the appellant they would be relevant only as grounds for reduction of the Goldie Crescent tenancy, a matter over which the tribunal has no jurisdiction. On appeal from the tribunal, this court cannot go into matters over which the tribunal had no jurisdiction. Accordingly this argument must fail.”