Landlord and tenant – Public sector housing – Tenants rights – Right to purchase – Housing (Scotland) Act 1987 (as amended) – Section 62 (as amended by section 49 of the Housing (Scotland) Act 2001), section 71(2)(b) – The Housing (Scotland) Act 2001 (Scottish Secure Tenancy etc) Order 2002, Scottish Statutory Instrument 2002 No. 318
The tenant applied to the Tribunal for a finding in terms of section 71(2)(b) of the Housing (Scotland) Act 1987 that the landlords’ offer to sell did not conform with the requirements of the Act. Her tenancy had started in May 2007 and it was not disputed that the discount on the purchase price as calculated in the offer was on the “modernised” basis which would normally have been correct for such a tenancy. The question was whether she was entitled to a discount calculated on a “preserved” basis. The tenant qualified for the RTB to buy by virtue of her previous occupation of subjects which were, or had been, a warden’s flat forming part of a block of sheltered housing. The landlords contended that in order to enjoy a preserved RTB after 30 September 2002, a tenant had to have enjoyed the RTB before that date. The tenant and her husband did not enjoy such a right in respect of the wardens flat prior to 1 April 2006 due to her husband’s requirement to occupy the house for the better performance of his duties. In the event, the applicant had not been the tenant. She contended that the respondents had a discretion to allow a preserved right. The matter was argued before the Tribunal by reference to a guide published by the Scottish Executive entitled “The Scottish Government Modernised Right to Buy – Housing (Scotland) Act 2001”. That was based on the provisions of The Housing (Scotland) Act 2001 (Scottish Secure Tenancy etc) Order 2002, Scottish Statutory Instrument 2002 No. 318.
HELD the tribunal was satisfied on the evidence that the applicant had not been tenant of the previous flat. She had no right to buy it. The respondents had no discretion. It appeared that the tenant’s argument had been based in part on a confusion of the concept of repossession on “management grounds” and the concept of a “management transfer” which referred to a transfer which is offered to a tenant or his household in circumstances of harassment. In the present case there had in fact been neither. OBSERVED that the Tribunal expected to be addressed by landlords on the primary legislation rather than by reference to “guides” although the latter could be used in the present case as it was at least as favourable to the tenant as the legislation itself.
See full decision: LTS/TR/2007/11