DESCRIPTIVE RUBRIC

Landlord and tenant – Public Sector Housing – Tenants’ rights – Right to purchase – ‘offer to sell the house to the tenant’ – Tenant of end terrace house objecting to grant of unrestricted access to rear of mid-terrace house – application more than 2 months after date of offer to Sell – Whether timeous – Whether tenancy was subject to unrestricted right of access – Housing (Scotland) Act 1987, as amended, Section 63(1)(e), 66(1), 71(1)(d).

Fletcher v South Lanarkshire Council
6 October 2005
LTS/TR/2004/5

The applicants’ house was on one side of a terrace block of three, the other 2 houses having previously been sold to the tenants. The landlords proposed, on selling to the applicants, to burden their title with an unrestricted servitude right of pedestrian access in favour of the proprietor of the middle house, as already conveyed to its proprietor. One of the applicants had been sole tenant under 1986 missives of let. At the time of their application to purchase they were joint tenants under a 2004 Scottish Secure Tenancy Agreement. Neither lease referred specifically to this access. Between 1991 and 2004 the applicants had been in correspondence with the landlords about this access. Their primary position was that their tenancy was not burdened with any right of access, but they were prepared to accept access for the purpose of taking wheelie bins to the street and independent tradesmen working to the rear of the house.

The application was brought under Section 71(1)(d) of the 1987 Act, on the basis that the Offer to Sell was not an offer to sell “the house” as tenanted. The application was made just over 2 months after the date of the offer. The respondents contended that the application was not timeous, having regard to the 2 month time limit in Section 66(1).

Held, (1) The objection to the competency of the application would be rejected. The Tribunal’s decision in Graham v Northern Joint Police Board that there was no short limitation period applicable to Section 71 applications would be followed: there was no reason to distinguish applications under Section 71(1)(d). The attempt to deduce a time limit through Section 66 was unconvincing. The distinction, in relation to time limits, between Section 71(1)(d) and Section 65 arises where a tenant is able to bring himself within either. Waiver or acquiescence had not been suggested.

(2) The applicants’ tenancy was burdened with a right of access. This was a restricted right but was not restricted as much as contended for by the applicants. The relevant tenancy agreement was the 2004 agreement. The suggestion that in the absence of any express provision there was no right of access could not be accepted where there was established access. There had always been a footpath leading round to a point from which access to the garden of the middle house was natural and there was evidence of acceptance and exercise of such a right. The landlords’ argument that this was unrestricted, having been subject only to control at the discretion of the landlord, could not be right – there was an established understanding and acceptance of restriction to reasonably necessary use such as use for the wheelie bin and other carrying of heavy objects which it would not be reasonable to take through the middle house. If the matter required to be considered on the basis of the 1986 tenancy, the position on the evidence was more difficult, but on balance at least some access at that date was also established. The landlords were ordered to serve an offer to sell in proper form, by including a declaration that the access was for the enjoyment of the middle house as a private dwellinghouse and for the purpose of wheelie bins, heavy objects, etc. and for any other necessary purposes.

Cases referred to:-

Popescu v Banff and Buchan District Council 1987 S.L.T. (Lands Tr.) 20
Brown v City of Glasgow District Council LTS/TR/1988/64, 18.1.1990
Scullion v Dumbarton District Council LTS/TR/1990/178, 1.11.1990
Graham v Northern Joint Police Board 2000 S.L.T. (Lands Tr.) 7
Higgins v North Lanarkshire Council 2001 S.L.T. (Lands Tr.) 2
Mortimer v North Lanarkshire Council LTS/TR/2001/10, 29.5.2002
Erskine v West Lothian Council LTS/TR/2002/15, 20.8.2003


See full decision:  LTS/TR/2004/5