NOTE

Michelle Anne Caven v Irvine Housing Association

[1] This is an application under sec 68(4) of the Housing (Scotland) Act 1987 (“the Act” or “the 1987 Act”) whereby the applicant applies to the Tribunal for a finding that she has a right to purchase her home under sec 61 of the Act. It is opposed by the respondents as incompetent.

[2] The respondents are registered social landlords for the purposes of the Act. The applicant is a Scottish secure tenant of the house she lets from the respondents at 28 Goldie Crescent, Nithsdale, Dumfries. She originally, from about 1991, held a tenancy from them of a house at 69 Stakeford Street, Dumfries but in or around September 2003 she exchanged that tenancy for the present one. At that time she lost the preserved right to buy which would otherwise have attached to her original tenancy and it was replaced by the modernised right to buy in respect of her new tenancy, all in terms of changes made to this area of the law by the Housing (Scotland) Act 2001 (“the 2001 Act”).

[3] One of the other changes made by the 2001 Act, in terms of sec 44 thereof, was to introduce a new sec 61A into the 1987 Act whereby the right to buy which tenants of registered social landlords on Scottish secure tenancies would otherwise have in terms of sec 61 of that Act was disapplied for a period of ten years. Subsection (4) of sec 61A provides that that period can be extended by the Scottish Ministers for a further period of up to 10 years on an application to them by the landlord.

[4] Section 61A came into effect on 30 September 2002. Accordingly, when the applicant entered her new tenancy a year later, the right to buy provisions of sec 61 had already been disapplied. She was told that she would not be able to buy her house until September 2012. There appears to be a dispute as to what she was told about what might happen thereafter. The applicant seems to have formed the impression that she had been promised that she could buy her house at that time and says that on the strength of that she spent some £30,000 on improving it. On the other hand, we have seen correspondence between the respondent and the applicant’s Member of Parliament wherein the respondents say that there was a standard clause in the offers of let they issued around the time of the applicant’s new tenancy in the following terms:

“Your tenancy will be a Scottish Secure Tenancy and a copy of our tenancy agreement is available on request. You will have the modernised Right to Buy your new home, however, in accordance with legislation, you will not be able to exercise your Right to Buy until 30th September 2012 at the earliest, and this date could be extended.”

[5] On or around 10 November 2015 the applicant applied to the respondents to buy her house. By that time, of course, the original period of disapplication of the right to buy ought to have expired. However, in or around March 2012 the applicants had applied to the Scottish Ministers for an extension of the period in terms of subsec (4) of sec 61A and that application had been granted for a further period of 10 years. Accordingly the applicant’s right to buy remains suspended and will, in fact, be terminated when the right to buy is abolished, with the repeal of sec 61 of the 1987 Act by sec 1 of the Housing (Scotland) Act 2014 as of 1 August this year.

[6] This is, of course, unfortunate for the applicant and indeed unfair, as she sees it, given her expectation of being able to buy her home any time after 30 September 2012. However, the law is as stated by the respondents in their answers. These answers have been copied to the applicant and she has been given the opportunity of responding but she has not been able to produce anything – indeed there is nothing she could produce – which shows that she is entitled to buy her home. Accordingly we have had to dismiss the application as incompetent.

Expenses

[7] We have reserved the question of expenses and allowed the usual period for parties to lodge motions and submissions thereanent.