Lands Tribunal for Scotland

OPINION

Lilian Fotheringham
v
Hillcrest Housing Association Ltd.

1. In this application for a finding in terms of Section 68(4) of the Housing (Scotland) Act 1987, as amended, the applicant claims a right to purchase the house of which she is a tenant of the respondents. The respondents resist the application, principally on the ground that the applicant does not have a secure tenancy, because, in relation to tenancies which were not already in existence on 2 January 1989, they are not a landlord whose tenants have that status.

2. Having considered parties’ submissions, the Tribunal has decided to uphold the respondents’ submissions and to refuse the application. Further, the matter of expenses having also been the subject of submissions, the Tribunal is satisfied that the respondents are entitled to an award of the expenses of the application against the applicant.

3. The material facts appear not to be in dispute. The applicant commenced a tenancy with the respondents in 1990, and transferred to her present address in 1993. In November 2008, following a telephone enquiry which she had made, she was advised by the respondents that she did not come within a category of tenants who were eligible to purchase. She nevertheless submitted an application to purchase. The respondents immediately wrote refusing to process her application, giving the same reason and also referring to their charitable status.

4. The applicant then submitted this application to the Tribunal, giving brief particulars of the dispute, indicating that she had been a tenant of Dundee City Council from 1967 to 1975 and that Hillcrest had, when she took up her tenancy with them, led her to believe that she would have the right to buy in the future. The respondents opposed the application and submitted answers covering a number of points. The Tribunal did not consider that the applicant’s response to these answers met the points made by the respondents, and made an order for further particulars, with an accompanying Note explaining the need for this, giving the applicant the opportunity to make her case and suggesting that she might be well advised to obtain legal assistance. The applicant responded to this. Parties were agreed that the Tribunal could dispose of this application without the need for an oral hearing. The respondents added a claim for expenses, which the applicant resisted.

Tribunal’s Consideration: Whether the Applicant has the Right to Buy

5. The central problem for the applicant is that she does not have and cannot rely on a tenancy with the respondents which was in existence on 2 January 1989. That date is significant because it is the operative date of provisions of the Housing (Scotland) Act 1988, particularly Section 43. When the right to buy provisions were introduced by the Tenants’ Rights (Scotland) Act 1980, registered housing associations were among the landlords whose tenants could acquire secure tenancies and thus qualify for the right to buy. This was still the position under the Housing (Scotland) Act 1987, which re-enacted the ‘right to buy’ provisions. However, Section 43 of the 1988 Act, for whatever reason, changed that position, creating a new status of ‘assured tenancies’ for housing association tenants. Such tenants would no longer have the right to buy. This applied to tenancies which were not already in existence on 2 January 1989. The first date on which the applicant had a tenancy from the respondent was in 1990. The 1988 Act contained a number of transitional provisions preserving the rights of some tenants, but there is no suggestion that the applicant is able to rely on any of these transitional provisions.

6. Having considered all the applicants’ submissions, the Tribunal can discern only two suggested reasons why she may nevertheless have the right to buy: her earlier tenancies, from 1967 to 1975, from Dundee City Council; and the claim that Hillcrest had led her to believe that she would have the right. The Tribunal cannot uphold either of these reasons. As to the first, the short answer is that the right to buy is a right to buy from the tenant’s current landlord, so that the previous local authority tenancy is irrelevant. If, however, that previous tenancy could assist the applicant’s position, the gap of 15 years, during which there is no suggestion that the applicant had any tenancy which could be relevant, would also be fatal to the claim.

7. As to the claim that someone in Hillcrest misled the applicant, this is denied by the respondents but the Tribunal does not need to explore that issue of fact because this too could not assist the applicant. Even if some such statement were made, it would not give the applicant the right to buy, which would still depend on the statutory provisions. The respondents also argue that any right which the applicant might have had arising out of such a statement made some 18 years ago would have prescribed. The Tribunal does not consider it necessary or appropriate to rule on that argument, which might be of wider application.

8. The applicant makes a number of other points, but these all appear to the Tribunal to be more procedural than substantive. She does explain that she did not have legal assistance with her application but in fact had sought such support and been advised not to proceed further.

9. The respondents advance a further reason why the right to buy does not extend to their tenants, namely that, they say, they had attained charitable status on 22 September 1987. They have produced a letter from the Inland Revenue, Charities Section, dated 1988. There certainly have been provisions exempting charities from the right to buy provisions – Section 61(4)(e)(i) of the 1987 Act might cover the respondents’ position – but the Tribunal does not feel that it has sufficient material to decide this point.

10. As the applicant, not having had a tenancy from the respondents which dates from earlier than 2 January 1989, has failed to overcome the basic hurdle facing her application, the Tribunal must refuse the application.

Tribunal’s Consideration: Expenses

11. Although expenses are not always claimed in proceedings under this jurisdiction, the Tribunal has power, under Rule 28(1) of the Lands Tribunal for Scotland Rules 2003 to deal in such manner with the expenses as in its discretion it thinks fit. The main principle applicable is that ‘expenses follow success’, because the unsuccessful party must be considered to have caused the successful party to incur expense.

12. In this case, the respondents claim expenses in the event that they are successful. The applicant claims in response that Hillcrest contributed to the uncertainty of her position by a member of staff saying that she would have the right to buy sometime in the future; that when she applied to the Tribunal she did not have a copy of her tenancy; that Hillcrest should not have allowed her to continue in their tenancy without knowing that she could not buy; and, in effect, that Hillcrest had been obstructive when she applied for a right-to-buy form. The respondents resist these points and in particular refer to their written advice to the applicant on two occasions, and also their written reply to her solicitors, all prior to her making the application. They also rely on the applicant’s own statement to the Tribunal that she had received legal advice not to proceed.

13. As we have indicated, there is a factual dispute whether the applicant was told by a member of the respondents’ staff that she would have the right to buy. Even, however, if it is accepted, for the purposes of deciding on expenses, that such a statement was made, we do not consider reliance on a statement made so long ago, in preference to the position made clear to the applicant by the respondents before she submitted her application, can affect the position about expenses. The applicant suggests that she has lost the opportunity of transferring to another landlord from whom she might have been entitled to buy. Whatever might be said about that suggestion, in our view it has nothing to do with the issue of expenses: it provides no justification for making and proceeding with the application in the face of advice to the effect that she did not have the right. Any obstructiveness on the respondents’ part to the application appears to have related mainly to their (correct) understanding that the applicant did not have the right. We cannot see anything in these points made by the application which affects the principle that she has caused expense to the respondents, nor can we find any reason to criticise the respondents’ conduct of this matter. In these circumstances we feel that we have no alternative but to award the expenses of the application to the respondents. We offer the hope that these expenses may in the circumstances be modest, but in the event that the amount cannot be agreed the tribunal’s order provides for taxation, or assessment, of the amount of the recoverable expenses by the Sheriff Court auditor in the normal way.