Landlord and tenant – Public sector housing – Tenants Rights – Right to purchase – Secure tenant – Continuous occupation for two years – Housing (Scotland) Act 1987, section 61(2)(c), section 68(4)

Johnston v Dundee City Council

The secure tenant of a house applied to purchase it. The landlords refused the application on the ground that he had not been in occupation of the house for a continuous period of two years prior to the date of service of the application to purchase. Solicitors for the parties agreed that this was entirely an issue of credibility. The applicant had married about a year before the application. There was a body of second-hand evidence to the effect that he had lived at his wife’s house thereafter. This was supported by direct evidence that his house had no carpets, little furniture, no cooker and no television. However, the applicant and his wife asserted that although they spent most of their time in her house, they stayed overnight in separate rooms in his house. He suffered from serious mental health problems. It was suggested that she was no more than a carer.

Held that although it was unfortunate that the respondents had chosen to rely on second hand evidence and the case raised potential questions of onus which had not been addressed by the parties, it could properly be decided on the issue of credibility. Because of his condition the applicant’s own evidence fell to be regarded as essentially neutral. His wife was not a credible and reliable witness. On the whole evidence the Tribunal found it established on balance of probabilities that there had not been continuous occupation of the subjects over the period of prior to the application and following the marriage.

See full decision:  LTS/TR/2005/4