Lands Tribunal for Scotland

OPINION

Roy
v
Perth & Kinross Council

The first named applicant applied to purchase the subjects at 2 Bairds View, Madderty on 26 November 1998 under the provisions of the Housing (Scotland) Act 1987. On 18 January 1999 the respondents sent a Notice of Refusal on the basis that the information in the application was incorrect in a material respect in that he had not been in occupation of the house for a period of not less than two years immediately preceding service upon the Council of his application. On 22 January 1999 a further Notice was sent setting forth the contention that the application was also incorrect in that the house was not the applicant's only or principal home as indicated.

In response the applicants, on 17 February 1999 made the present application for a finding in terms of section 68(4) of the Act. They challenged the grounds of refusal and referred to the fact that the refusal had not been served within one month.

The case was subject to a series of sists at the request of Mr Roy to allow him to seek legal aid or to take advice from Counsel and it was not until 13 June 2002 that the respondents were ordained to lodge answers. In response they sent a letter to the Tribunal dated 18 June 2002. This gave detail of an alleged termination of the tenancy in February 1999. In particular the letter asserted that: “On 26 January 1999 a Notice of Abandonment was served on the property … in terms of section 49 of the [Act]. Four weeks later on 23 February, Perth and Kinross Council took possession of the subjects in terms of section 50 and the tenancy was terminated.” It was contended that the applicant, accordingly, was no longer a secure tenant and as such had no locus in terms of an application under section 68(4).

The Tribunal accepted this letter as equivalent to Answers for the purposes of their said Order of 13 June and by further Order of 24 June 2002, appointed the applicant to lodge his response to the detail set out in the letter. Express intimation was given that unless the response contained sufficient material to demonstrate that the applicant was or might be a tenant of the subjects as at the present time, or set out detail of any legal argument which might otherwise entitle his application to succeed, the application would be dismissed. The Order and Note of 24 June are referred to for their full terms.

In response, the applicants adjusted the application to delete the existing narrative of matters in dispute and to substitute formal submissions referring to section 68 of the Act. The adjustments made no attempt to respond to the detail set out in the letter of 18 June. There was no challenge to the assertion relating to the Notice of Abandonment and no suggestion of any defect in the procedures followed by the Council. There was no material to demonstrate the basis of any contention that the applicant was or might be a current tenant of the subjects. However, in response to a suggestion by the Tribunal that the matter be determined on the basis of written submission, the applicant's solicitors wrote on 26 July 2002. Their letter gave some detail of an action for recovery of possession of heritable property raised by the respondents and served on Mr Peter Roy on 5 March 1999. It said that the action was sisted. It contended that, accordingly, the status of the tenant had not been determined.

In the circumstances, the Tribunal fixed a hearing on 25 September 2002 with a view to consideration of the adequacy of the averments relating to the applicant's status.

At the hearing the applicant was represented by Mr A G Malcolm, Solicitor of Messrs J & G Wilson. The respondents were represented by Mr B MacFarlane, Solicitor, employed by Perth & Kinross Council.

For the respondents it was submitted that the Notices of 18 and 22 January 1999 were timeous in terms of section 68(2). In any event, the procedure under section 50 had validly brought the tenancy to an end. There had been no challenge to these proceedings. Accordingly there was now no tenancy. The applicant did not have the status of tenant. The respondents were not landlords. The Tribunal could not act on their behalf as landlords to make an offer to the applicant as he no longer had the necessary status as tenant.

In response, Mr Malcolm did not attempt to deal with the submission that the Notices were timeous. His position plainly was that even if the Notices were timeous, he would at proof be able to show that they were not well founded. However, his submissions were quite properly limited to the issue of status. He provided a good deal of background material. It disclosed what he described as a tangled web. We heard somewhat confused submissions relating to the distinction to be drawn between Mr Roy and Mrs Roy. They had been living at separate addresses from time to time and had different interests. It appeared that they owned subjects used as a piggery a short distance from the subjects of the present application. They had a residential caravan at the piggery. It was accepted that Mrs Roy, at least, stayed there on occasions. It was, however, contended that Mr Roy was in fact living at 2 Bairds View at the time when Notices under section 50 were allegedly served and that Mrs Roy was not living there at that time. Nevertheless, it was said that the letters addressed to Mrs Roy at that address had been received by her but contended that no such similar letters had been received by Mr Roy. We heard that the respondents had successfully raised proceedings for ejection of Mr and Mrs Roy in 1998. These had been opposed only by Mrs Roy. The main ground of defence had been that the subjects were not habitable. However after an unsuccessful appeal, full payment of arrears of rent had been tendered and a letter was produced showing that on receipt of these arrears the respondents had, on 11 November 1998 written to Mrs Roy's solicitors confirming that the extract decree would not be enforced.

On a superficial view of the background information it is possible to have a sense of sympathy for Mr Roy. All events took place within a comparatively short space of time. It might be thought surprising that the first action would be resolved in the way it was, to be followed within a couple of months by proceedings to terminate the tenancy on the ground of non-occupancy. To that may be added the fact that the proceedings to terminate followed the application to purchase. On Mr Malcolm's narrative it seemed clear that there was no question of the applicants having a better home to go to. If they were not fully occupying the house it was because they found the facilities afforded by a caravan to be preferable to those of the house. However, it is clear that the superficial view is not the whole story and, in any event, we consider this particular background to be irrelevant to the specific issues now before us.

Mr Malcolm accepted that the applicants had knowledge of the procedures taken under section 50 by the respondents to recover possession. It was, indeed, said on behalf of Mr Roy that the locks had been changed on 22 February 1999. There was no doubt that the applicants had not had physical possession of the house since about that time. It was clear from the terms of his defence to a subsequent action in the Sheriff Court that Mr Roy was aware of the procedures followed under section 50. It was not disputed that no attempt had been made to rely on the appeal provisions of section 51. He made no other attempt to regain possession.

It was accepted that if the applicant could not demonstrate that he was a tenant at the present date, the Tribunal would not be able to proceed. Mr Malcolm stressed the fact that his client "continued to regard himself as a tenant of the subjects". He submitted that he was to be regarded as a quasi tenant. The Tribunal should proceed on that basis.

Decision

The procedures followed by the respondents might well have been challenged as defective in failing to comply with the provisions of section 50. The copy produced of their said letter of 26 January to Mr Roy did not appear to cover the requirements of section 50(1)(b). However, Mr Malcolm did not take that point and when we raised it he advised us that he considered this argument precluded by failure to appeal to the Sheriff under section 51. It was, indeed, accepted in general terms that the failure to take advantage of the provisions of section 51 presented serious difficulty for the applicant. We agree and consider that nothing in the material drawn to our attention allows him to get round that difficulty.

It was not disputed that the application could only proceed if the applicant was currently to be regarded as tenant of the subjects. He had not had occupation of them since February 1999. He had not paid rent since about that time. It was not disputed that a third party currently had occupation of the subjects under a tenancy agreement with the respondents.

We heard no submission as to the meaning or relevance of the supposed status of "quasi-tenant" for the purposes of the Act. We have not required to address the difficult question of how any such status could co-exist with the current tenancy. We are satisfied that although it may not always be the case that physical dispossession is, itself, sufficient to defeat an applicant's status as tenant, valid procedures under section 50 will have that result. In the present case we heard no positive submission founding on any shortcoming in procedures.

There was, of course, the assertion that Mr Roy had not received the Notice which the respondents purported to have sent in terms of section 50. However, the circumstances of Mr and Mrs Roy were confused and there was no positive offer to prove that the respondents had failed to comply with the provisions of section 84 – which provides for service of notices. We were told that Mrs Roy had received her copy of the letter. Our Order of 24 June spelled out the need for clear assertion in relation to the applicants status as tenant. There was no such material in the formal response. We allowed Mr Malcolm to provide a good deal of background information and would have been prepared to draw any clear inferences from it. However, we are not prepared to go beyond the material presented. We did not hear any substantive submission as to the implications of any failure to ensure that Mr Roy received the Notice.

It was accepted that an appropriate remedy would have been an application to the Sheriff under section 51. That makes express provision for situations where the landlord has failed to comply with any provision of section 50. While this express provision might not preclude an argument that a radical failure to comply with the provisions of the section would prevent reliance on it, we heard no such argument. In any event we do not consider that the material presented to us on behalf of Mr Roy demonstrates any patent failure of that radical nature.

As we can see no basis upon which it could be concluded that the applicant currently has status as tenant, we are satisfied that no purpose is to be served by continuing the present proceedings.

Parties moved for expenses in the event of success. Mr Malcolm also submitted that if the applicant was unsuccessful it would be appropriate for the Tribunal in exercise of its discretion in relation to expenses to find no expenses due to or by either party. In support of this he stressed that the application had not been made in bad faith. Mr Roy had various complaints about the conduct of the respondents and a genuine sense of grievance. He did not have the benefit of legal aid. He was of extremely limited means. He had already incurred legal expense in attempts to unravel the complicated tangle of affairs. The Tribunal had a discretion and should exercise it in his favour.

Although we have no reason to doubt the assertion of impecuniosity we consider it well established that this, itself, is not a relevant factor in relation to the exercise of a discretion in relation to expenses. The underlying principle is, of course, that parties who have been put to the expense of litigation to establish or defend their rights should recover the expense incurred in doing so. Another important consideration is the reasonableness of the way in which the litigation is conducted. There can be no criticism of the respondents under that head. We accept that Mr Roy has acted in good faith in the present proceedings. We are not persuaded that there is any justification for a departure from the normal principle that expenses should follow success. It will be for the respondents to weigh up the implications of any impecuniosity when they come to consider enforcement of the award.

Although the application runs in name of both Mr and Mrs Roy, we heard that they had not always acted as one and the role of Mrs Roy in the present case was not clear. We have accordingly limited the finding of expenses to a finding against Mr Roy.