DESCRIPTIVE RUBRIC

Landlord and tenant – Public sector housing – Tenants’ rights – Right to purchase – Conditions of offer to sell – Reasonableness, and extent of subjects – Retired police officer – Disputed obligation to pay rent – Entitlement to rent-free accommodation ceasing on retirement – Condition requiring payment of rent to date of entry – Extent of ground offered – Extent of let – Drying-green area behind police station in garden of police house – Parking area in front of police station and house – Housing (Scotland) Act 1987 Sections 64(1), 75(1) – Housing (Scotland) Act 2001, Section 25

Robb v Tayside Joint Police Board (3)
1 March 2010
LTS/TR/2009/11

A police officer had occupied with his wife a police house attached to a police station, under regulations entitling him to rent-free accommodation during his service. Prior to his retirement in January 2008, he had asked to purchase the house. This had been refused, but the Tribunal had previously held that he had a secure tenancy and was entitled to purchase. The parties had been in dispute as to whether in the circumstances there was an obligation to pay rent pending the completion of the sale. The respondents’ Offer to Sell contained a condition requiring payment of any rent due up to the date of entry. At the hearing, they contended for a more specific condition, for payment of rent from 15 January 2009, at £550 per month, a figure fixed by an independent valuer and intimated to the applicant on 18 December 2008. The plan attached to the offer excluded two areas which the applicants claimed they were entitled to purchase, viz. a drying-green area behind the police station but within the garden of the police house, and a parking area in front of the police station and house, part of a small lay-by affording parking to police officers and others attending the police station.

In relation to the condition for payment of rent, the applicants argued that the condition, even as amended at the hearing, was too vague and ambiguous; the imposition of rent being an ‘increase’, there had been failure to comply with Section 25(1) and (4) of the 2001 Act; the obligation, being an obligation to make a payment which would not otherwise have been required, was struck at by section 75(1) of the 1987 Act as amended; and the condition did not relate fairly and reasonably to the sale.

Held, (1) the condition for payment of rent, as amended at the hearing, would be upheld. The amendment had made it clear and unambiguous. In the normal situation where there was no dispute about rent, such a condition would appear entirely reasonable: one would expect it in a sale to a tenant and there was no reason to distinguish a sale under the statutory scheme in this respect. Here, however, there was dispute about liability for rent and there was something to be said for omitting the condition, leaving the dispute to be resolved elsewhere. However, both sides had presented submissions on the dispute and it was appropriate to consider whether the dispute raised any serious issue. There was no reasonable foundation for arguing that rent was not due from 15 January 2009. Section 25 authorised the landlord in a secure tenancy to fix the rent; the letter of 18 December 2008 provided ‘notice’ under section 25(1); and Section 25(4), referring to proposals in relation to “all, or any class of” tenant could have no application to this particular situation. More generally, there was nothing unreasonable about the claim for rent in the particular situation where the entitlement to rent-free accommodation had ceased, at least after clear intimation. Section 75 did not apply: although there was apparent ‘but for’, or immediate, causation, the real cause of the requirement to pay rent was not the application to purchase but the continued occupation of the house. There would have been an obligation to pay rent, whether or not there was an application to purchase.

(2) In relation to the extent of ground, exclusion of the drying-green area was not upheld. This was an area plainly enjoyed exclusively by the applicant, and his predecessor as tenant, within the established garden of the police house. It was not directly accessible from the police station. The respondents had had no requirement to use it. Their wish to retain it for possible redevelopment, while understandable, could not be upheld under the statutory scheme. There was, however, no basis for the applicants’ claim in relation to the parking area sought by them, which was not in any way delineated on the ground and could not be said to be within the area let to them. The applicant’s wife, in regularly parking in the area in question, was merely exercising a facility available to all members of the public. The respondent’s offer of a right of access through that area to the driveway leading to a garage within the garden of the police house was appropriate.

Authorities referred to:-

Pollock v Dumbarton District Council 1983 SLT (Lands Tr) 17
Neave v Dundee DC 1986 SLT (Lands Tr) 18
Brookbanks v Motherwell DC 1988 SLT (Lands Tr) 72
City of Glasgow DC v Doyle 1993 SLT 604
‘Housing (Scotland) Act 2001 – Guidance on Tenant Participation’ (Scottish Executive Development Department)


See full decision:  LTS/TR/2009/11