James Smith, the proprietor of a property at Moravia Avenue, Bothwell, sought to evict tenants Lynne MacDonald and Steven Munro on the ground of rent arrears. The First-tier Tribunal for Scotland Housing and Property Chamber took the view that his purported notice was not sufficient as to allow it to entertain the application.

The appeal was heard by Upper Tribunal for Scotland member Sheriff Iain Fleming.

Assumption or presumption

Under the terms of the tenancy, which was a private residential tenancy under the 2016 Act, the monthly rent due was £420. By November 2019, the respondents had accrued three consecutive months of rent arrears, therefore the appellant instructed sheriffs’ officers to deliver written Notices to Leave at the property. The Notices were deposited in the property’s letterbox on 28 November 2019, with a Certificate of Intimation provided, and later sent to the tenants by ordinary post. The date stated as the expiration of the notice period, and therefore the first day that an action could be raised in the FtT, was given as 27 December 2019.

The appellant applied to the FtT seeking an eviction order on the ground of rent arrears on 17 January 2020. At a Case Management Discussion in August 2020, the FtT refused the application on the basis that the purported notice did not meet the definition of a Notice to Leave under section 62 of the 2016 Act. Permission to appeal was granted in December 2020.

A key part of the appellant’s argument before the FtT was that the assumption that the tenants would receive the Notice 48 hours after it was sent could be disapplied by the fact that notice was served by sheriff officers. As there were no provisions regarding service of notices under the 2016 Act, section 26 of the Interpretation and Legislative Reform (Scotland) Act 2010 was relevant, which distinguished between sending the notice and delivery in person. The FtT had rejected this argument on the basis that an ‘assumption’ could not be rebutted in the same manner as a ‘presumption.’

The appellant’s written submissions were that the FtT had erred in law by failing to properly interpret section 62 and related provisions when considering the date on which the Notice was served. Further, it had failed to properly interpret and apply section 73 of the Act by failing to assess the materiality of the purported error.

It was further submitted that there was no adequate reasoning given for holding that an assumption was incapable of rebuttal, and there was no significant distinction between an assumption and a presumption. The use of ‘assumption’ still allowed for an alternative finding to be made.

No hallowed status

In his decision, Sheriff Fleming began by noting generally: “The purpose of the provisions of the 2016 Act is to ensure that a tenant has a minimum period of notice. The FtT accepted that the Notices were received by the respondents on the date when the sheriff officers delivered them.”

He continued: “In my view section 62(5) [of the 2016 Act] does not apply in this case because the Notices were not sent. They were delivered. The notice period began when the tenants received the Notices. In a case such as this where there is personal delivery the tenants received the Notices on the day they were delivered.”

Turning to the arguments concerning whether an assumption could be rebutted, he said: “There was no authority within the FtT decision for the statement that an assumption cannot be rebutted but a presumption could be. While the case of Lees v Gilmour (1990) is a case in an entirely separate context (criminal) nevertheless its reasoning can be applied in this case. An assumption does not have what is described is the ‘hallowed status of an irrebuttable presumption’.”

He continued: “Adopting a purposive approach to the statute the 28 day period should commence on the date when the Notice to Leave was received. On one view, the actual delivery of the Notices to Leave provides greater certainty that committing a document to the post. In addition, the FtT did not provide any legal reasoning or explanation for its conclusion that a presumption is capable of rebuttal but an assumption is not.”

Sheriff Fleming concluded: “The FtT did not find that the Notices were not received by the respondents. There was unchallenged evidence of delivery of the Notices to the respondents at the property. The FtT appears to have discounted or ignored that unchallenged position and concluded that the Notices were required to be treated as having been received on 30 November 2020. In so doing the FtT failed to take account of a relevant and material consideration. The FtT has effectively increased the period of notice under the 2016 Act which it was not entitled to do.”

For these reasons, the appeal was allowed. The case was returned to the FtT for consideration, as rent arrears had been temporarily rendered a discretionary eviction ground by the Coronavirus (Scotland) Act 2020 at the time of the Case Management Discussion.