Eviction ground must exist at time of notice, UT rules
A notice to leave rented property must, in order to be valid, be based on an eviction ground that applied at the time of the service of the notice, rather than the day on which the First-tier Tribunal first considered the application for an eviction order on its merits, the Upper Tribunal has held.
Sheriff Tony Kelly gave the decision in refusing an appeal by Amer and Nosheen Rafique against a decision of the First-tier Tribunal to refuse their application for an eviction order against Ryan Morgan, tenant of a property in Glasgow. The applicants founded on the ground that the respondent had been in rent arrears for three or more consecutive months. The tribunal had pointed out that this was not the case at the date of service of the notice to leave; it was persuaded to accept the application but refused it following a case management hearing.
The appellants argued that Majid v Gaffney [2019] UT 59, which also ruled that the eviction ground had to apply at the time of service of the notice, was wrongly decided. The matter was governed by sched 3, para 12(2)(a) to the Private Housing (Tenancies) (Scotland) Act 2016, which contained the test for which they argued. Section 62(1) of the Act, on which the tribunal relied, was ambiguous and did not support the Tribunal’s approach. The appellants’ interpretation was supported by the report of the parliamentary debates on the preceding bill.
Refusing the appeal, Sheriff Kelly said there were “significant provisions of the legislative scheme” that pointed to the content of the notice to leave requiring more than was contended for by the applicants: ss 52(3) and (5) and 54(1). The tenant had to be told of the date when the landlord expected to be able to apply for an eviction order; but if the factual basis did not exist at the time of service of the notice, the landlord could not know when there would be a basis to apply to the tribunal. However if the circumstances did exist at that time, the landlord would know that, by s 62(4), there would be a basis on expiry of the period of notice.
“It makes sense for the clock on the computation of that period to start running from when the tenant is told that he must leave, and for that notice to contain information that at that point in time forms a sufficient basis in fact to amount to an eviction ground”, he said. “The purpose of these requirements – the computation of the period of notice and the statement of the eviction ground – is difficult to make sense of if all that the landlord requires to intimate to the tenant when serving a notice to leave is that an application based upon a specified eviction ground may, at some unspecified point in the future, be made to the FtT.”
The statutory form to be used as notice to leave was to similar effect. “The appellants’ construction renders the service of the notice as a procedural nicety or technicality devoid of any real meaning or effect when it is served.” There was no inconsistency between the provisions, and “it makes more sense to view them as a whole… giving effect to a coherent scheme”. There was no ambiguity that needed to be resolved by looking at the parliamentary debates – which did not in any event assist the appellants.
Sheriff Kelly concluded by saying that he had not read Majid v Gaffney until the close of submissions. “On reading it I agree with it.”