DESCRIPTIVE RUBRIC

Landlord and tenant - Public sector housing - Tenants' rights - Right to purchase - Right to purchase all that purchaser has enjoyed as a tenant - Tenant claiming ground previously sold to neighbour - Housing (Scotland) Act 1987 section 63(2).

Higgins v North Lanarkshire Council
30 May 2000
LTS/TR/1998/13

The offer to sell to a tenant who had applied to purchase his house under section 61 of the Housing (Scotland) Act 1987 did not include a strip of ground which the applicant claimed always to have enjoyed as tenant, although he had permitted successive neighbouring tenants to occupy the ground on the basis of verbal agreements for which purpose the boundary fence had been moved. On two occasions when the landlord had inspected the neighbouring properties they had recorded the altered line of the fence as the actual boundary line. When they sold the adjacent property to the tenant they included the disputed strip of ground in her title. This became apparent to the applicant when he sought to purchase his house and found that the strip of land was excluded from the offer to sell.

The applicant referred the matter to the Tribunal under section 71(1)(d) of the Act for a finding under section 71(2)(b) that the contents of the offer did not conform with the requirements of section 64 (1)(a) in that it did not ensure that he had as full enjoyment of the house as owner as he did as tenant. In the event that the Tribunal should make a finding to that effect he asked that it should order the landlords to amend the offer to sell so as to include the strip of ground which he claimed. The Council argued that should the Tribunal so find then it was not competent for it to order the Council to offer the strip of ground to the applicant that proposition having been correctly decided by the Tribunal in Brown-v-Scottish Homes.

Held (1) that the strip of ground had been included in the subjects let to the applicant; (2) that it was competent for the Tribunal to require the Council to offer to enter into a contract with the applicant in terms of which they will become obliged to convey the disputed land to him, and (3) ordered the Council to serve on the applicant an offer to sell in proper form, including the disputed land, within one month.

Cases referred to:-

Banff and Buchan District Council-v-Earl of Seafield's Estate 1988 SLT (Lands Tr.) 21
Brown-v-Scottish Homes, 5 May 1994 (unreported) , disapproved
City of Glasgow District Council-v-Doyle 1993 SLT 604
Cooper's Executors-v-City of Edinburgh District Council 1991 SC (HL)
Davidson-v-Zani 1992 SCLR 1001
Henderson-v-City of Glasgow District Council 1 May 1991 (unreported)
Julius-v-Bishop of Oxford [1880] 5 App. Cas. 214
Kaur-v-Singh and Others
1997 SCLR 1075
Lang-v-Dixon 29 June 1813 FC
Livingstone-v-East of Scotland Water Authority 1997 SLT (Lands Tr.) 28
Logie-v-Renfrew District Council 20 March 1991 (unreported)
MacDonald-v-Strathclyde Regional Council 1 March 1989 (unreported)
McLeod-v-Ross and Cromarty District Council 1983 SLT (lands Tr.) 5
Matheson-v-Tinney 1989 SLT 535
Morrison-v-Somerville (1860) 22D 1082
Morrison-v-Stirling District Council 1987 SLT (Lands Tr.) 22
Naylor-v-Glasgow District Council 12 January 1983 (unreported}
Petrie-v-Forsyth (1874) 2 R 214
Popescu-v-Banff and Buchan District Council 1987 SLT (Lands Tr.) 20
Rodger (Builders) Limited-v-Fawdry 1950 SC 483
Ross and Cromarty District Council-v-Patience 1997 SLT (HL) 463
Short's Trustees-v-Keeper of the Registers of Scotland 1996 SLT (HL) 166
Strathclyde Regional Council-v-Barcaldine School Board and Others 23 September 1992 (unreported)
Trade Development Bank-v-Warriner and Mason (Scotland) Ltd 1980 SC 74
Trade Development Bank-v-David W Haig (Bellshill Ltd 1983 SLT 510
Trade Development Bank-v-Critall Windows Ltd 1983 SLT 510
Walker-v-Strathclyde Regional Council 22 March 1989 (unreported)


See full decision:  LTS/TR/1998/13