Landlord and tenant - Public sector housing - Tenants Rights - Right to purchase - Questions of waiver of right - Waiver of right to buy - Waiver of right to apply to Tribunal - Mora taciturnity and acquiescence - House occupied rent free by serving police officer - Police authority - Housing (Scotland) Act 1987, section 61(2)(a)(viii), section 63, section 68(4), section 71(2)(a), section 82 - Police (Scotland) Act 1967, section 26
A serving police officer was anxious to buy the house provided free by his employers and repeatedly made that clear to them. It was not disputed (a) that his occupation fell to be regarded as a tenancy; and (b) that it was not a secure tenancy under the provisions of the Housing (Scotland) Act 1987. In about July 1996 he made a formal application purporting to seek a right to purchase under the Act. There was no evidence that the applicant was aware that his application to purchase could have been refused on the basis that the tenancy was not a secure tenancy. The police authority made no formal response. There were informal discussions between the applicant and senior officers indicating that the landlords regarded the question of his purchase as a matter for their own policy; that there was little chance of a change of policy which would allow him to buy; but that the matter was under consideration. In August 1999 the applicant applied to the Tribunal for a finding that the authority had failed to deal with his application timeously and inviting the Tribunal to take steps necessary to issue an offer to sell. It was agreed, for the purpose of this case only, that they had therefore lost their statutory right to challenge the applicant's right to purchase. However, the respondents founded on his delay and on certain aspects of his conduct as showing that he had waived his right. The right waived was either the right to purchase or the right to apply to the Tribunal. The evidence suggested that the respondents had never applied their minds to the nature of his application and to any rights he might have had under the Act.
Held mere delay could not amount to waiver and the contrast between the various short procedural periods provided by the Act and the time taken to apply to the Tribunal did not justify any relevant inference when there was no time limit provided for that under the Act; the applicant's desire to buy was never in doubt and there was no clear evidence that he had ever given up any relevant right; there was no evidence of any form of reliance by the respondents on waiver by the applicant.
Observed in an appropriate case further examination of the nature of waiver in Scots law might be required but that the Tribunal was bound by the decision in Armia v Deajan as interpreted in Lousada & Co Ltd.
W J Alan & Co Ltd v El Nasr Export & Import Co 1972 2 QB 189
Armia Ltd v Deajan Developments Ltd 1979 SC 56
Atlas Assurance Co Ltd v Dollar Land Holdings plc 1993 SLT 892
Banning v Wright 1972 1 W LR 972
Barratt Scotland Ltd v Keith 1994 SLT 1337
James Howden & Co Ltd v Taylor Woodrow Property Co Ltd 1999 SLT 841
Livingstone v East of Scotland Water Authority 1999 SC 65
Lousada & Co Ltd v J E Lesser (Properties) Ltd 1990 SLT 823
MacKenzie v Catton's Trustees 1887 5 R 313
Morrison's Executors v Rendall 1986 SLT 227
Presslie v Cochrane McGregor Group Ltd 1996 SC 289
See full decision: LTS/TR/1999/17