It has been almost two years since the Private Housing (Tenancies) Scotland Act 2016 came into force and the First-tier Tribunal for Scotland (Housing and Property Chamber) took on the Sheriff Court’s jurisdiction over cases relating to most types of private residential tenancy in Scotland. This included the new Scottish Private Residential Tenancy (“SPRT”) introduced as from 1 December 2017.
Inevitably, with an entirely new Tribunal finding its feet at the same time as an entirely new tenancy regime there have been teething issues and outcomes to cases which were not envisaged by practitioners or even the government when the legislation was drafted. Arguable loopholes and potential stumbling blocks are only now being revealed or decided upon.
This is true in particular for SPRTs because, while Assured Tenancies and Short Assured Tenancies existing before December 2017 were heard by the Tribunal immediately after its creation, it took some time for SPRTs to reach the Tribunal.
Sheriff Court or Tribunal
The Tribunal does not have jurisdiction to hear all cases about tenancies. It can only hear cases “arising from” a residential tenancy. At the outset, cases have naturally tested the parameters of this somewhat wide definition.
In Parker v Inkersall Investments Ltd the Sheriff Court dismissed the case and awarded expenses against the party who raised it because they had failed to identify their tenancy over a farmhouse was a residential tenancy and therefore could only be dealt with by the Tribunal.
More recently in the case of Anderson v First-tier Tribunal for Scotland Housing and Property Chamber the applicant argued that a personal guarantee of a tenant’s obligations arose from a residential tenancy and therefore should be dealt with by the Tribunal. While the Tribunal disagreed and labelled the case as “misconceived and hopeless” as the Tribunal did not have jurisdiction, the applicant appealed this decision and the Upper Tribunal held that on the basis of the facts the guarantee did arise from a residential tenancy. The Tribunal accordingly had jurisdiction. However, in his written decision the Sheriff made it clear that on a different set of circumstances a guarantee which related to a residential tenancy might not “arise from” it and might not fall within the Tribunal’s jurisdiction. He noted the issues applicants and the courts face in deciding how related the case is to a residential tenancy and, therefore, which forum to raise the action in.
In many cases there will usually be an element of judgement by the applicant or their solicitor as to where the case should be raised.
Notice periods
Serving a valid Notice to Quit or Notice to Leave is an essential part of terminating most residential tenancies. In every application for eviction the landlord must prove the relevant notice was served, received and gave the correct notice period.
Traditionally solicitors advise their clients if possible to give extra “clear” days in the notice to reduce the chance the notice period is rendered too short. However, from the outset our view was that the legislation on SPRTs appeared to require the landlord to state the exact amount of days. If extra time was given the notice would in our view be invalid.
Surprisingly (or perhaps not) this was at odds with the Scottish Government’s own guidance and the prescribed terms of its style Notice to Leave. A landlord proceeding without the advice from a solicitor would be reasonable to think they could extend the notice period. However, in Lewis-Flannigan v Mill the Tribunal clarified their view that the Notice to Leave can only be valid if the exact date is stated on the notice. If the landlord provides a longer period of notice it will be invalid and the landlord will need to serve a new notice and commence proceedings all over again. Solicitors (including Lindsays) were somewhat vindicated for warning their clients of this obscure pitfall, which was difficult to advise on given the Scottish Government’s failure to acknowledge it.
The Government has since stated it will amend the legislation to allow for a longer period of notice to be provided in the Notice to Leave but in the meantime there is a risk that more landlords will fall foul of this pitfall.
Which type of tenancy?
The recent case of Affleck v Bronsdon reveals a potential issue for landlords and tenants who seek to enter into tenancies in HMO properties or properties with more than one tenant.
In that case the tenant had entered into a tenancy at a flat where three other tenants were already resident. She had her own room and use of a shared kitchen and living space. Her tenancy was entered into separately from the other occupants in the flat. She made an application against her landlords for a remedy on the basis she had a SPRT. The Tribunal and the Sheriff (on appeal) both held that there was no SPRT and no remedy available because the tenancy was over only part of a flat in shared occupation and in terms of the legislation these were exempted from being an SPRT.
Again, the question must be asked if the Scottish Government intended for an individual tenancy in a shared flat to be excluded from the SPRT regime. It is perhaps notable that it appears the Sheriff was not addressed on Section 2(4) of the Private Housing (Tenancies) Scotland Act 2016 which deals with shared occupation and which the government probably intended would ensure these situations did fall within the SPRT regime. We understand the applicant might appeal her case to the Court of Session, in which case this issue is not yet settled.
Navigating future obstacles
These cases reveal some of the potential problems for landlords or tenants who try to use the system. The Tribunal’s procedures are designed to be used by landlords and tenants on their own without the need for a solicitor. However, in practice while it appears the applicant might save money if the case is straightforward or uncontested, when issues arise about facts, law or procedure an applicant might find themselves in difficult waters through no fault of their own.
The Tribunal itself has been known to advise the applicant to seek legal advice when matters are less than straightforward. Often bringing in a solicitor later in the case can in fact increase the applicant’s expenses as the solicitor will require to bring themselves up to speed and spend time resolving the issue that brought the client to them. This is not to say the applicant has been following the wrong procedure or has misunderstood the law. The issue might be something which even the solicitor has not come across before. However, if the solicitor had been involved from the start there might perhaps have been a way to head-off the problem before it became material. There is no substitute for a solicitor’s foresight, experience and mind for tactical issues which could have revealed a different way forward to begin with.
Adam Gardiner is a solicitor in the Dispute Resolution team at Edinburgh. Please contact him if you have would like to discuss this article or any other dispute issues.