There have been a number of recent appeal decisions from the Upper Tribunal dealing with the issue of ‘reasonableness’ when considering whether an eviction order should be granted.
In one decision, Sheriff Collins, KC, in a case where the tenant had put forward no “defence” emphasised that the granting of an eviction order is still a matter for the Tribunal’s discretion. Obtaining an order is not ‘automatic’ even in an undefended case.
He stated that “The question of whether it is reasonable or not to issue an eviction order is always a matter for the judgment of the (tribunal) in the circumstances of the particular case, attaching such weight as it considers appropriate to the evidence before it … there is no presumption, as a matter of law, in favour of giving primacy to the property rights of the landlord over the occupancy rights of the tenant, or vice versa.”
In a separate decision Sheriff Jamieson overtured a HPC decision not to grant an eviction order. In this Case the landlord sought eviction on the basis that he wished to carry out significant refurbishment work to the tenancy, including building an extension to it. The tenant had previously obtained a repairing standard enforcement order(RSEO) from the First-tier Tribunal (Housing and Property Chamber) (HPC) requiring the landlord to undertake various repairs. The landlord had not completed those repairs.
The HPC, as part of its reason for refusing the eviction, had indicated that the proposed works went “far beyond” what “might be necessary” to satisfy the RSEO. Sheriff Jamieson held that the tribunal’s “reference to the works in this case going “far beyond” what “might be necessary” to satisfy the RSEO was a manifestly irrelevant consideration in assessing whether the Appellant intended to carry out the works”.
He decided to quash the original decision and granted an eviction order. In doing so he stated that (in connection with reasonableness) that the “relevant circumstances on the appellant’s side are his legal right to use and dispose of his property as he thinks fit within the constraints of planning and building law, and his subjectively reasonable wish to reconstruct the house for transfer to his stepson for use as a family home. Those on the respondents’ side are their long period of occupancy of the house, emotional attachment to it, the age of the second respondent, the reduced state of their health, their difficulties in finding a house to rent of equivalent amenity, the loss of their supportive neighbours, and their subjectively reasonable wish to live in the house indefinitely”
In the circumstances of this case, he then held that “the deciding factor to be that the (landlord) exercises a right of property, whereby he can use or dispose of the house as he thinks fit. I therefore agree with the (landlord’s) submission that those interests must take precedence over the wishes of the (tenants) to continue in occupation of the property indefinitely “
It will be interesting to see if these UT decisions are used in sheriff court actions involving Registered Social Landlords seeking eviction orders in the sheriff courts on grounds which are basically identical to the private sector.
Technically the UT decisions are not ‘binding’ on the sheriff (i.e. a sheriff is not obliged to follow its reasoning) but they are almost certain to be ‘persuasive’ given that they are decisions from senior sheriffs whose opinion will undoubtedly be highly regarded by other members of the shreival bench.
As always our housing team is happy to assist landlords in both the public and private sectors with any queries relating to eviction actions. Get in touch here
