DESCRIPTIVE RUBRIC

Landlord and Tenant – Tenants Rights – Right to Purchase – Tenancies from Housing Associations – Tenant under secure tenancy entering into new tenancy from same landlord of different house – Whether new tenancy ‘secure’ or ‘assured’ – Housing (Scotland) Act 1988, Sections 12, 43(3) and Schedule 4, paras. 1, 11, 13(2).

McAllister v Queen’s Cross Housing Association Limited
22 November 2001
LTS/TR/2001/5

Registered housing associations were among the landlords, tenancies from whom were originally ‘secure tenancies’ to which the right to purchase provisions applied. The Housing (Scotland) Act 1988, however, altered the position of housing associations, creating, in the case of housing association tenancies entered into after the Act commenced, a new status of ‘assured tenancy’ which did not attract the right to purchase. There were transitional provisions.

The applicant was the tenant under a secure tenancy entered into with housing association landlords before the commencement of the Act. After the Act came into force, she entered into a new tenancy, in respect of a different house, with the same landlords, on the same day as the previous tenancy terminated. She contended that her ‘secure’ status (and thus her right to purchase) was preserved by Section 43(3)(c), which provides:-

“43(3) A tenancy which is entered into on or after the commencement of this section cannot be a secure tenancy unless –

(c) it is granted to a person (alone or jointly with others) who, immediately before it was entered into, was the secure tenant (or any one of the secure tenants) of the same landlord”.

The landlords argued that Section 43(3)(c) did not apply where the new tenancy related to different subjects.

Held, granting the application, the tenant’s interpretation of Section 43(3)(c) was to be preferred. The expression, ‘the secure tenant’ did not imply that the house must be the same as in the previous tenancy, but was simply a short way of expressing the requirement that the tenant had also been the tenant under a previous tenancy (which might, or might not, have been in respect of the same house) from the same landlord. The tenant’s interpretation was consistent with the scheme of savings or exceptions from the basic scheme of the Act removing ‘secure’ status from tenancies from housing associations. This interpretation covered situations where it might, as a matter of policy, be thought appropriate to continue ‘secure’ status, and did not create any significant anomalies. It was also in line with the accepted interpretation of corresponding (although not identically worded) English provisions.

Authorities referred to

Goringe v Twinsectra [1994] CLY 2723 (Staines County Court)
Milnbank Housing Association Ltd. v Murdoch 1995 SLT (Sh’f Ct.) 11
Laimond Properties v Al-Shakarchi (1998) 30 HLR 1099 (Court of Appeal)
Arogol Company Limited v Sher Rajah 21.3.2001 (Court of Appeal)
Knowes Housing Association Limited v Millar 2001 SLT 1326 (Extra Division)
Megarry, Rent Acts, 11th. Ed’n., Vol. 3, pp 65ff


See full decision:  LTS/TR/2001/5