DESCRIPTIVE RUBRIC

Landlord and Tenant – Public sector housing – Tenants rights – Right to purchase – Right to purchase all that purchaser has enjoyed as a tenant – Garden ground used by a neighbour – Housing (Scotland) Act 1987, sections 61, 63(2) and 64

Mortimer v North Lanarkshire Council
15 May 2002
LTS/TR/2001/10

The applicant was tenant of an upper house in a block of four. Garden ground at the front of the house had until at least 1995 been part of the subjects tenanted. In 1996 the applicant agreed that the downstairs tenant could carry out work on the ground to improve its appearance. The work done involved installation of a polythene sheet and a cover of gravel chippings. The ground had remained in that condition since about 1996. When the applicant applied to exercise her right to buy her house the respondents declined to include this block of ground.

It was argued that even if the ground had been part of the original tenancy it was no longer used and enjoyed by the owner within the meaning of section 64(1)(a).

Held the provisions of section 64 were not intended as a qualification of the extent of the tenant's rights to buy under section 61. Under that section the tenant had a right to buy the house as tenanted. The limited evidence bearing on the agreement with the neighbour did not go as far as to take the disputed land out of her tenancy. She was accordingly entitled to an offer which included this land.

Cases cited

Higgins v North Lanarkshire Council 2001 SLT (Lands Tr) 2
Reference by Cumbernauld and Kilsyth District Council 1993 SLT (Lands Tr) 51

It should be noted that Cafferty v Falkirk Council 20 July 1999 LTS/TR/1999/1 was not cited.


See full decision:  LTS/TR/2001/10