OPINION

Muhammad Anis Chaudhry and Mrs Saddia Anis Chaudhry v South Lanarkshire Council

[1] The applicants are Mr Muhammad Anis Chaudhry and his wife Mrs Saddia Anis Chaudhry.

[2] On 14 June 2016 they applied to purchase their home at 66 Hutchison Street, Hamilton, (“the subjects”) which they occupy on a Scottish Secure Tenancy (within the meaning of section 11 of the Housing (Scotland) Act 2001) in the sole name of the first appellant.

[3] By notice dated 1 July 2016 the respondents, South Lanarkshire Council, refused that application for the following reason:

“Your tenancy of the above property commenced on the Thirteenth day of June, Two Thousand and Eleven, and your qualifying occupation as defined in terms of the Housing (Scotland) Act 1987, as amended, also commenced on the Thirteenth day of June, Two Thousand and Sixteeen (sic). You therefore do not have the right to buy your home in terms of the restriction on the right to buy contained in Section 61ZA of [the] Housing (Scotland) Act 1987.”

[4] The applicants have now applied to the Tribunal under section 68(4) of the Housing (Scotland) Act 1987 (“the 1987 Act”) for a finding that they have a right to buy the subjects. Both parties have agreed that the appeal can be dealt with on the basis of their written submissions.

[5] The relevant facts are as follows:

(i) Prior to the present tenancy the subjects were leased to the first-named applicant’s uncle, Mr Mohammad Bashir.

(ii) On or around 11 October 2010 Mr Bashir applied to the respondents for permission for the applicants and their children to live with him at the subjects. The applicants have lodged what purports to be a copy of a letter dated 12 October 2010 from the respondents and signed by one of their Housing Officers granting such permission, whilst the respondents deny that permission was granted and have produced what purports to be a copy of a letter of the same date from the same Housing Officer intimating refusal of permission.

(iii) Whatever the truth of that matter, on or around 18 October 2010 the applicants and their children moved into the subjects and shared them with Mr Bashir until his departure for Pakistan on or around 18 December 2010.

(iv) The applicants aver that they took over responsibility for the rent and all other charges relating to the subject from the date of Mr Bashir’s departure. The respondents’ position is that it remained Mr Bashir’s responsibility to pay the rent and any other sums due to them while he remained tenant and that it was up to him to make appropriate arrangements for their payment while he was out of the country. They do not admit that it was the applicants who actually made payment of rent after Mr Bashir’s departure.

(v) On or around 14 April 2011 Mr Bashir intimated to the respondents that he would not be returning to Scotland and on 20 April 2011 completed an application to assign the tenancy to the appellants.

(vi) Whether or not as a result of that application, a Scottish Secure Tenancy agreement was entered into between the first-named applicant and the respondents on 9 June 2011 with entry as at 13 June 2011.

(vii) The foresaid application to buy the subjects and its refusal followed thereon.

Legislation

Housing (Scotland) Act 1987 (as at June 2016)

61 - Secure tenant’s right to purchase

(1) Notwithstanding anything contained in any agreement, a tenant of a house to which this section applies (or such one or more of joint tenants as may be agreed between them) shall, subject to this Part, have the right to purchase the house at a price fixed under section 62.

(2) This section applies to every house let under a Scottish secure tenancy where –

(a) the landlord is, or was when the tenancy was granted, either –

(i) a local authority …

(b) the landlord is the heritable proprietor of the house; and

(c) immediately prior to the date of service of an application to purchase, the tenant has been for not less than 5 years in occupation of a house (including accommodation provided as mentioned in subsection 11(ab), (ac) or (n)) or of a succession of houses provided by any persons mentioned in subsection (11).

(6) A tenant may exercise his right to purchase, if he so wishes, together with one or more members of his family acting as joint purchasers, provided –

(a) that such members are at least 18 years of age, that they have, during the period of 6 months ending with the date of service of the application to purchase, had their only or principal home with the tenant and that their residence in the house is not a breach of any obligation of the tenancy; or

(b) where the requirements of paragraph (a) are not satisfied, the landlord has consented.

61ZA Limitation on right to purchase: new tenants

(1) Section 61 applies to a house let under a Scottish secure tenancy created on or after the day on which section 141 of the Housing (Scotland) Act 2010 (asp 17) comes into force only if the tenant has, since that day, continuously been in occupation of a house as a tenant… or of a succession of houses provided by any persons mentioned in section 61(11).

[6] Although parties have agreed that the case can be dealt with on the basis of written submissions, the applicants have not in fact added to the terms of their original application, whereas the respondents have lodged very full and helpful submissions.

[7] It is not necessary to set out these submissions in full. Suffice to say that the respondents take their stand on section 61ZA of the 1987 Act. Section 141 of the 2010 Act came into force on 1 March 2011 (The Housing (Scotland) Act 2010 (Commencement No 2 Transitional, Transitory and Saving Provisions) Order 2011). Their point is that since, in their submission, the tenancy came into existence only on 13 June 2011 the first appellant has not been in occupation of the subjects qua tenant since 1 March 2011 and is not, therefore, entitled to buy the subjects in terms of section 61.

[8] The applicants’ position is succinctly stated at para 5 of their application, where they say “The applicant [although the application is in the name of both Mr and Mrs Chaudhry the averments relate only to Mr Chaudhry] argues that as a consequence of his assuming responsibility for all rent, council tax and associated property payments … he was in fact the tenant with effect from 18 December 2010”. That averment is denied by the respondents in terms of their general denial at the end of para 5 of their Answers but, for the purposes of the argument, we proceed on the basis that the first applicant did assume responsibility for the payments referred to as at 18 December 2010.

[9] Whatever may have been the position prior to the amendment of section 61ZA(1) of the 1987 Act by section 2 of the Housing (Scotland) Act 2014, introducing the qualification that occupation had to be occupation as a tenant before the right to buy arose, it is clear that since the coming into force of that change a tenant under a tenancy entered into after 1 March 2011 requires to show that he or she has occupied the house, or another house provided by one of the persons listed in section 61(11) of the 1987 Act, as a tenant since that date.

[10] On the facts and circumstances of this case there simply cannot be any doubt as to when the tenancy started. It started on the date specified in the tenancy agreement, that is to say, 13 June 2011. The applicants’ averment that Mr Chaudhry paid the rent from 18 December 2010 is inadequate to set up the relationship of landlord and tenant from that date. Indeed the existence of such a relationship is contradicted by the applicants’ admission that “the final transfer [of the lease from Mr Bashir to Mr Chaudhry] did not take place until 13 June 2011” (Statement of Particulars, para 5). Up until then Mr Bashir remained the tenant, even if Mr Chaudhry or Mr and Mrs Chaudhry paid the rent. The applicants do not offer to prove that the respondents accepted them as tenants before that date and indeed the application for consent to assign the tenancy to Mr Chaudhry, completed by Mr Chaudhry on 14 April 2011 and by Mr Bashir on 20 April, shows that both of them regarded Mr Bashir as being the tenant at least until the latter of those dates. Accordingly there can be no question of the present applicants, or Mr Chaudhry alone, having occupied the subjects as tenants from 1 March 2011 and they therefore fall foul of section 61ZA, as amended, with the result that they do not have the right to buy the subjects. This application is, therefore, refused.


Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 8 March 2017

Neil M Tainsh – Clerk to the Tribunal