The appellant was seeking remedies under the Private Housing (Tenancies) (Scotland) Act 2016, but the Upper Tribunal for Scotland upheld a decision by the First-tier Tribunal for Scotland (Housing and Property Chamber) that there was no PRT agreement between the parties.

‘New year, new home’

Sheriff Nigel Ross heard that the appellant Kate Affleck moved into a flat in Edinburgh owned by the respondents Chris Bronsdon and Sarah Bronsdon on 1 January 2018. 

She entered into email correspondence with the respondents and was sent various details, such as a tenant’s handbook and information about the tenancy deposit scheme. 

The emails included a “New Tenant Registration Form”, which gave the respondents’ bank details and sort code, gave a date of transfer of the first day of each month, and stated a rent amount of £350 per month, but no tenancy agreement was ever provided despite the appellant asking for one.

Nevertheless, the appellant duly resided in the flat, where she had replaced an outgoing tenant and was one of four residents, for several months, paying monthly rental, without incident or dispute.

However, in about August 2018, a dispute arose when one of the existing tenants moved out and another person moved in and asked for a tenancy agreement.

The respondents belatedly supplied a draft tenancy agreement for the appellant to sign, but it became apparent that the respondents and the appellant had quite a different idea of what arrangements existed.

The respondents claimed that the appellant was jointly and severally liable for the entire rent of the flat, but the appellant baulked at that suggestion, which had never previously featured in any correspondence between the parties.

‘Legal fiction’

The sheriff described what the respondents had tried to create as a “legal fiction”.

He said: “They claimed that the appellant was bound by a joint and several lease which had been assigned to her by her predecessor. This position was entirely unstateable – not only could they not produce any such lease, but the predecessor (tracked down by the appellant) denied any assignation had taken place. 

“The respondents produced only an unsigned draft of a lease form from 2012, which they claimed was the lease referred to. Bizarrely, that lease form expressly forbade any assignation without consent. They could produce no such consent. They claimed there was a ‘rolling lease’, but could not produce one. 

“Their correspondence with the appellant did not mention joint and several liability. In legal terms their position was incoherent.”

He added: “Quite why a tenant would willingly assume, or why it was fair to impose, liability for the unpaid debts of complete strangers, was not explained in evidence. I doubt it could be.

“It is unprincipled and exploitative for a landlord to force a tenant, for no other reason than that they share a living space, to pay the rent of non-paying third party co-tenants. That is what the respondents have tried to achieve here. That position verges on the oppressive.”

There followed five separate draft tenancy agreements, four of which sought to impose joint and several liability.

The appellant signed none of them, as they all represented one-sided attempts to increase her exposure to liability, and only the fifth draft attempted to identify what part of the flat the appellant would occupy.

The appellant lodged an application with the Housing and Property Chamber, arguing that there was a PRT in place between the parties, but the tribunal found that the parties had not agreed the rent, or who was the tenant, or the subjects.

‘Correct conclusion’

The appellant challenged the tribunal’s findings, but the Upper Tribunal for Scotland held that while the tribunal’s legal analysis was “flawed”, it reached the “correct” conclusion, namely that there was no PRT concluded between the appellant and respondents.

In a written decision notice, Sheriff Ross said: “The tribunal found that there was no agreement as to who was the tenant, because the tenant could be solely the appellant, or all four tenants. In my view, that was an error, because the correspondence between the parties is clear that the appellant was a stand-alone tenant, and both parties regarded her as such.

“The tribunal found that there was no agreement as to subjects. The appellant regarded herself as the tenant of a part only of the flat. The respondents regarded her (but without ever making that clear) as a joint tenant of the whole flat. Neither side is correct. 

“Notably, the appellant is unable to point to which part of the flat was leased to her, and in fact she moved bedrooms during the tenancy. The respondents are unable to point to correspondence where the appellant agreed a joint tenancy. 

“However, the documents and emails (which should have been expressly referred to by the tribunal in findings in fact) make clear that, whatever parties intended, there was an arrangement, capable of amounting to a lease, of a one-quarter pro indiviso share of the flat. 

“Accordingly, the subjects are capable of being regarded as settled, by construing the plain meaning of the parties’ correspondence. The tribunal was in error in considering the subjects were not agreed. Leases, like all contracts, are interpreted according to what people have said and done, not according to their innermost thoughts.

“The third finding made was that there was no true agreement as to rent. The appellant, understandably, thought that her maximum liability for rent was £350 per month. 

“The respondents, privately, thought her minimum liability was £350 but that, at their discretion, they could demand from her £1,400 (everybody’s share) per month. The fact they accepted £350 per month did not alter that understanding. 

“The correspondence, however, had it been analysed by the tribunal, shows that the parties agreed in correspondence that the rent would be £350 per month, whatever the respondents’ private intentions. The rent, therefore, is identified.

“The duration was not specified, but that does not prevent there from being a lease. Accordingly, the terms of the parties’ agreement are capable of amounting to a lease. The tribunal erred in finding otherwise.”

‘No PRT’

But the question was not whether it was a lease, but whether it was a PRT.

Sheriff Ross continued: “The lease was not a PRT. That is because the 2016 Act requires certain features to be present. The application falls at the first hurdle. 

“Section 1 of the 2016 Act defines a PRT. A tenancy can only qualify as a PRT if ‘the tenancy is one under which a property is let to an individual (the tenant) as a separate dwelling’ (section 1(1)(a)).

“The nature of the appellant’s occupancy ought to be the subject of a separate finding in fact. It is clear, from the judgment as a whole, that she does not occupy the property ‘as a separate dwelling’. 

“She is one of four residents, and is entitled to exclusive occupation only of her own bedroom. She has to share all other facilities. Other tenants can come and go. 

“She does not occupy a separate dwelling. She occupies part of a communal dwelling. For that reason, the arrangement does not qualify as a PRT under the 2016 Act.

“The remedies sought by the appellant only apply to a PRT. She is not entitled to those. Accordingly, the tribunal came to the right result for the wrong reasons, and I will refuse the appeal.”

The appellant submitted that the failure to find a PRT established meant that landlords could “skirt the law”.

But the sheriff rejected that suggestion. 

“It only means that the 2016 Act does not apply,”, he said, adding: “For all other leases, the pre-2016 law applies according to the circumstances.”

‘Confusion’

In a postscript, the Upper Tribunal observed that the appeal might have been avoided if the tribunal properly applied its mind to the pleas-in-law.

Sheriff Ross concluded: “Although a section of the tribunal’s decision is described as findings in fact, that section includes a discursive treatment of various inferences and views. It does not provide the necessary facts. 

“Findings in fact are of critical importance. They form the bedrock of the whole decision. They show, without equivocation, what evidence has been accepted by the tribunal as proven and, just as importantly, what evidence is rejected. 

“They provide the only basis of fact from which inferences can be made, logical conclusions reached, and decisions in law justified. They should be stated as a list of facts, as briefly and precisely as possible. Any reasoning for a finding in fact must be explained separately.

“The tribunal ought to have made clear, brief findings in fact, and then findings in law on the legal analysis of those facts. The failure to do so has led to opacity and confusion and an unnecessary appeal.”