DESCRIPTIVE RUBRIC

Landlord and Tenant – Public Sector Housing – Tenants Rights – Right to Purchase – timeous offer withdrawn before acceptance – No timeous notice of refusal – Only or principal home – Housing (Scotland) Act 1987 Section 63 (2), 64, 65, 66 (1), 68, and 71 (1) (a)

Smith v Aberdeen City Council
8 December 2000
LTS/TR/2000/16

The tenant applied to buy the subjects stating on the application form that the subjects were her only or principal home. The landlords processed the application in the usual way and issued a timeous offer to sell. Shortly after, they received a typed unsigned message purporting to come from “anxious neighbours” alleging that the applicant had bought another house. To preserve their position the landlords wrote to the applicant formally withdrawing the offer. They at no time sent a notice of refusal within the meaning of section 68 (1). The applicant applied to the Tribunal seeking a finding that the landlord had failed to issue timeously either an offer to sell or a notice of refusal. The landlords contended that an offer had been issued timeously and that the tenant ought to have ignored the “formal withdrawal” as there was no statutory warrant for it. The case had been set down by the Tribunal, in the usual way, as a hearing to take place by way of proof before answer. It appeared that the landlord had intended to mount a substantive attack on the status of the applicant as a secure tenant having regard to the allegation that the subjects were not her main or principal home at the time of application. The applicant challenged the competency and relevancy of this material. There had been no proper notice of intention to take this approach. It was, in any event, precluded by authority. The landlord pointed to the fact that letters giving full detail of the nature of the allegation had been exchanged. The tenant could be in no doubt as to the substantive point to be taken. There could be no question of prejudice although it was admitted that the letters had not been formally made part of the present process. In the event, parties were agreed that the hearing proceed by way of debate. Any proof on the merits would require to take place at a continued diet.

Held (1) that it was competent to withdraw an offer; (2) that as from the date of withdrawal the offer was of no effect;(3) and that on a proper view on the whole provisions of the Act an offer which has been withdrawn within the period provided by the Act for acceptance is not an offer for the purposes of section 71 (1) (a); (4) although the pleadings were inadequate to give proper notice of the intention of the landlords to contend that the applicant was not in fact a secure tenant there would have been no prejudice in allowing this issue to be considered at a future diet as it was clear from the whole facts and circumstances that adequate notice of the points in issue had been given; (5) however the Tribunal was bound by authority to hold that where there was no timeous notice of refusal the Tribunal had no jurisdiction to consider the issue of the status of the applicant as a secure tenant.

Cases referred to:-

Graham – The Northern Constabulary 2000 SLT (Land Tribunal) 2
Livingstone – The East of Scotland Water Authority 1999 SC 65
MacKay – The City of Dundee District Council 1996 SLT (Lands Tribunal) 9
Ross – The City of Dundee Council 2000 SLT (Lands Tribunal) 2


See full decision:  LTS/TR/2000/16