Lands Tribunal for Scotland

OPINION

John Robb
v
Tayside Joint Police Board (No 2)

Introduction and Summary

1. This purports to be an application under Section 65(2) of the Housing (Scotland) Act 1987 (“the 1987 Act”) by a tenant aggrieved by the refusal of his landlords to agree to a request to strike out or vary conditions in an Offer to Sell under the ‘Right to Buy’ legislation. The landlords challenge the competency of the application. The tenant had, when he lodged the application, not in fact made such a request in relation to the relevant Offer to Sell, but subsequently purported to do so.

2. The Tribunal has decided that it has no option but to uphold the landlord’s position and find this application incompetent.

Background

3. The tenant and applicant is a retired police officer. The landlords and respondents are the police authority. There is now some history of the applicant’s attempts to purchase his house from his landlords. In a previous decision (LTS/TR/2007/12), the Tribunal found, following an oral hearing, that he had the right to buy. He apparently abandoned a subsequent application to purchase because he had failed to respond timeously with his objections to the terms of an offer to sell. On this occasion, he made his application to purchase on 25 March 2009. The Offer to Sell was made on 22 May 2009 and there is no suggestion that that was not timeous. The applicant apparently arrived home from holiday on 4 June 2009 to find the offer. Instead of making the request under Section 65(1) within one month, which there was still time to do, he proceeded straight to this application, received by the Tribunal on 12 June, under Section 65(2). After the respondents took the point with the Tribunal that there had been no response to the Offer to Sell, the applicant purported to serve a request under section 65(1) on 24 June 2009. Although the parties have in fact had a meeting on 14 July in an attempt to resolve the disagreement on the terms of the offer, the respondents have insisted on their objection on competency grounds. Written submissions have been received and there has been no request for an oral hearing on this point. The Tribunal has accordingly proceeded to consider the competency issue.

Parties’ Submissions

4. The landlords maintain their objection that the application is premature, the purpose of Section 65 being to give notice and allow consideration of disputed issues with an opportunity to amend the offer. The applicant not having made a request under section 65(1) could not be ‘aggrieved’ under section 65(2). It was irrelevant that some of the issues included in the purported request of 24 June had been the subject of previous discussion, but in any event this was not true of all of them. It was further submitted that the request dated 24 June 2009, in response to the Offer to sell dated 22 May 2009, was out of time.

5. Submissions on behalf of the applicant do not appear to address the primary argument that the applicant could not be a tenant ‘aggrieved’ under Section 65(2). It was, however, submitted that the Offer to Sell had not been served in accordance with the Citation Amendment (Scotland) Act 1882, Section 4, viz., by recorded delivery. Accordingly, it is argued, the one month time limit under Section 65 (1) should run from 4 June, the date of actual receipt by the applicant of the offer. Given that there was an issue, in relation to outstanding rent, which the applicant might fairly and reasonably presume would not be agreed, “it was reasonable for our clients to apply to the Lands Tribunal in respect of the timescale due to the Police failing to serve the offer by recorded delivery.” The tenant had not had the benefit of the full timescale laid down.

6. In response, the respondents submit that the Offer to Sell was validly served in accordance with Section 84 of the 1987 Act.

Tribunal’s Consideration

7. The applicant’s hope of being able to proceed with this application, in the particular circumstances, especially that a meeting to discuss the substantial issues has in fact taken place during the currency of the application, may appear reasonable, but in our opinion the applicant has no answer to the respondents’ submissions on competency.

8. The 1987 Act prescribes procedures in relation to following through the right to buy. The Tribunal has jurisdiction only on the basis of the statutory scheme. That scheme requires objections to the Offer to Sell to be submitted in the form of a request under Section 65(1) prior to applying to the Tribunal as a person aggrieved by the landlords’ failure to agree with a request to strike out or vary conditions. Not having followed the statutory procedure, the applicant is not entitled to invoke the remedy of applying to the Tribunal. Clearly, the rationale of the provisions is that the landlord should not be required to answer an application to the Tribunal without first having had the opportunity of considering such a request and if appropriate serving an amended offer. To this might be added that on any view of the one month time limit for making the request under Section 65(1), the applicant had plenty of time to make that request after he actually received the Offer to Sell.

9. Further, we reject the submission, based on the Citation Amendment Act 1882, that the request dated 24 June was timeous. We accept the respondents’ submission that the manner of service is governed by Section 84 of the 1987 Act. There is no suggestion that the Offer to Sell was not made on 22 May by one of the methods under that provision. The 1882 Act refers to citation to a court or similar body and has, in our opinion, no application here. Accordingly, in addition to the fundamental failure to follow the correct procedure, the applicant cannot place any reliance on the letter of 24 June which would be out of time.

10. For these reasons we must uphold the respondents’ submissions and find this application to be incompetent.

Comment

11. It does seem unfortunate to have to deal in this way with this application when, as a matter of fact the parties have, commendably, taken the opportunity to discuss their substantial differences. Presumably, the applicant will now require to commence the procedure yet again and follow it through correctly. It seems that there is one substantial issue between them, in relation to a condition about rent claimed by the respondents. In this situation, it is to be hoped that if the procedure does start again, both sides can take all procedural steps promptly so that if the matter requires to come back to the Tribunal this is done as soon as possible. We have of course at this stage not received full submissions on the issue about rent and offer no view on it. If agreement cannot be reached, this issue may turn out to be appropriate for an oral hearing, which the Tribunal would endeavour to arrange as soon as possible after any further application and answers are received.