OPINION

Barr v South Lanarkshire Council

[1] In this application Robert Barr and Karen Barr seek a finding in terms of sec 68(4) of the Housing (Scotland) Act 1987 (“the Act” or “the 1987 Act”) that they have a right to purchase their home at 18 Meadowside, Eddlewood, Hamilton (“the subjects”), from their landlords, South Lanarkshire Council.

The facts

(i) The applicants, who are husband and wife, were formerly tenants of the respondents at 14 Kenmar Road, Hamilton, their tenancy enduring from 1 April 1996 to 23 July 2014.

(ii) Prior to the termination of that tenancy they had, for reasons which suited all concerned, agreed with a cousin of one or other of them, who was then tenant of the subjects, that they would move in to live with that person.

(iii) This required the consent of the respondents and on 19 June 2014 an application for such permission was submitted to the respondents by the then tenant of the subjects. That application was granted with effect from 23 June 2014. Arrangements were then completed for the termination of Mr & Mrs Barr’s tenancy at 14 Kenmar Road, as aforesaid, and they moved in to the subjects, living there with the cousin, who remained as tenant.

(iv) On 21 April 2016 the tenant of the subjects applied to the respondents to assign his tenancy to Mr & Mrs Barr. That application was granted and a lease between them and the respondents was entered into with a date of entry of 9 May 2016.

(v) On 15 July 2016 Mr & Mrs Barr submitted an application for the purchase of the subjects to the respondents, under and in terms of the right-to-buy provisions of the 1987 Act.

(vi) On 1 August 2016 the respondents issued a notice of refusal in terms of sec 68 of the Act stating the following as the reason for refusal:

“Your tenancy … commenced on Ninth day of May Two Thousand and Sixteen, and your qualifying occupation as defined in terms of [the Act], as amended, commenced on Ninth day of May Two Thousand and Sixteen. You therefore do not have the right to buy your home in terms of the limitation on the right to buy for new tenants contained in Section 61ZA of [the Act] which requires you have continuous qualifying occupation since 1st March, 2011.”

(vii) Mr & Mrs Barr then applied to the Tribunal as aforesaid.

[2] It will be seen from the foregoing that from 23 July 2014 to 9 May 2016 Mr & Mrs Barr were not tenants of the respondents at any address. It is on that break in qualifying occupation that the respondents rely in opposing this application. Parties have agreed that the case be decided on the basis of written submissions, but before we turn to those it is convenient to set out the relevant legislation.

Legislation

1987 Act (as amended by the Housing (Scotland) Act 2001 and the Housing (Scotland) Act 2014)

“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, or a joint board or joint committee of two or more local authorities, or the common good of a local authority or any trust under the control of a local authority; or

(ia) a registered social landlord; or

(iia) Scottish Water;

and

(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)(n)) or of a succession of houses provided by any persons mentioned in subsection (11).

(10) In this section and section 62—

(a) references to occupation of a house are to continuous occupation and include occupation—

(i) in the case of joint tenants, by any one of them;

(ii) by any person occupying the house rent-free;

(iii) as the spouse of the tenant, joint tenant or of any such person;

(iv) as the child, or the spouse of a child, of a tenant or a person occupying the house rent free who has succeeded, directly or indirectly, to the rights of that person in a house occupation of which would be reckonable for the purposes of this section; but only in relation to any period when the child, or as the case may be spouse of the child, is at least 16 years of age; or

(v) as a member of the family of a tenant or a person occupying the house rent free who, not being that person’s spouse or child (or child’s spouse), has succeeded, directly or indirectly, to such rights as are mentioned in paragraph (iv); but only in relation to any period when the member of the family is at least 16 years of age.

(b) for the purpose of determining the period of occupation—

(iii) there shall be added to the period of occupation of a house by a joint tenant any earlier period during which he was at least 16 years of age and occupied the house as a member of the family of the tenant or of one or more of the joint tenants of the house.

(iv) the landlord may, if it thinks fit, disregard as not affecting continuity any interruption in occupation which appears to it to result from circumstances outwith the control of the person in question.”

“61ZA Limitation on right to buy: 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 as a tenant of a house …. or a succession of houses provided by any persons mentioned in section 61(11).

(2) For the purpose of determining such a period of continuous occupation –

(a) there shall be disregarded any period beginning with the termination of a tenancy (or of the tenant’s interest in a tenancy) under section 18(2), 20(3) or 22(3) of the Housing (Scotland) Act 2001 (asp 10) and ending with the tenant being re-accommodated in pursuance of section 19(3)(b), 21(3)(b) or 22(6) of that Act; and

(b) the landlord may disregard any interruption in occupation which appears to it to result from circumstance outwith the control of the tenant in question.”

*1 March 2011 (The Housing (Scotland) Act 2010 (Commencement No 2 Transitional, Transitory and Saving Provisions) Order 2011).

Housing (Scotland) Act 2001

“32 Assignation, subletting etc.S

This section has no associated Explanatory Notes

(1) It is a term of every Scottish secure tenancy that the tenant may assign, sublet or otherwise give up to another person possession of the house or any part of it or take in a lodger—

(a) only with the consent in writing of the landlord, and

(b) in the case of an assignation, only where the house has been the assignee’s only or principal home throughout the period of 6 months ending with the date of the application for the landlord’s consent to the assignation under paragraph 9 of schedule 5.

(2) A landlord whose consent is required under subsection (1) may refuse such consent only if it has reasonable grounds for doing so.”

Parties’ submissions

[3] Unsurprisingly, the respondents take their stand on the fact that Mr & Mrs Barr have not been tenants of theirs (or of any other relevant landlord) continuously since 1 March 2011 and therefore appear to fall foul of sec 61ZA(1). They say that none of the required or permitted disregards mentioned in subsec (2) apply; in particular, they say, the break in the applicants’ tenancy did not result from circumstances outwith the applicants’ control.

[4] The argument advanced by the applicants’ agent is more ingenious. It is that the assignation of the tenancy of the subjects to the applicants carried with it the previous tenant’s right to buy including the length of his qualifying occupation. There is no dispute that the previous tenant had the requisite period of occupation and that if it falls to be credited to the applicants this application must succeed.

[5] In support of this argument, Mr Santoni cites para 365 of Volume 13 of the Encyclopedia of the Laws of Scotland to the effect that an assignation of a lease entitles the assignee to possess the subjects on the same terms as the cedent and that the effect of a completed assignation is that the assignee is substituted for the cedent. He submits that in an assignation no new lease is created. Had the respondents intended to create a new lease they should have obtained a surrender of the previous one and entered into a new one. In his submission the question is not “how long have Mr & Mrs Barr been in occupation as tenants?” but “how long has the lease subsisted?”.

[6] Mr Santoni has an additional argument to the effect that the applicants have succeeded to the previous tenant’s rights under subsec (10) of sec 61.

Tribunal’s consideration

[7] In our view the wording of the relevant statutory provisions must take precedence over any common law notions as to what is involved in the assignation of a lease. That is because the whole legal regime with which we are concerned is statutory. Scottish secure tenancies are a creation of statute and the right of a tenant under such a tenancy in certain circumstances to buy his home was also a creation of statute. So it is to statute we must look for the answer.

[8] But we shall take as our starting point what the legislation says about the assignation of a Scottish secure tenancy. A form of assignation was permitted by sec 32 of the 2001 Act, the terms of which are set out above. The reference is to the assignation of “possession” of the house, not assignation of the lease. There is no suggestion that assignation is to carry with it all the rights and entitlements held by the previous tenant over and above the right to occupy the subjects. Indeed it would be strange if that were to be the case. It would mean that the previous tenant would have been denuded of his right to rely on his history of occupation of secure tenancies up to that point, so that, were he to move to another such tenancy he would be starting all over again: his earned eligibility to buy having been assigned to his successor. Nor can it be the case that such eligibility is to be taken into account twice, to the credit of both assignor and assignee. It does not seem to us, therefore, that there is any scope for interpreting sec 32 of the 2001 Act as including an assignation of rights and entitlements personal to the cedent and relating not to the subjects of let but to his own history as a tenant.

[9] We think the restricted scope of such assignations is reflected in what actually happened here. Although the matter was dealt with as an assignation and, pursuant on the statutory requirement for consent, an application for consent to assignation was made by the outgoing tenant, what seems to have happened, so far as the documentation produced discloses, is that the applicants and respondents entered into a new Scottish Secure Tenancy Agreement, production R1. There was no deed of assignation. It appears that the way in which the assignation procedure operates in practice, if the present case is anything to go by, is that it is simply a way in which an outgoing tenant can ask his landlord to agree to a certain nominated person succeeding him as tenant. That, if it be the case, is not, of course, determinative of the matter but it would fit with our interpretation of sec 32.

[10] That takes us on to Mr Santoni’s other argument. It is based on para (iv) of sec 61(10) but must, we think, proceed on a misreading of that paragraph since the paragraph refers only to the children and spouses of children of tenants or persons who have occupied the house rent free. Mr Santoni seems to read the provision as if persons occupying the house rent free were themselves covered by it, so that, as we understand the argument, if such a person succeeded to the tenancy, the previous tenant’s period of occupancy would be taken into account for the purposes of deciding eligibility under sec 61. As we read it, that is not what the provision is referring to. The phrase “who has succeeded to” refers not to “a person occupying the house rent free” but to the “child, or the spouse of a child, of a tenant or a person occupying the house rent free”. That is made clear from the concluding words of the paragraph which restrict the reckonable period of occupancy to “any period when the child, or as the case may be spouse of the child, is at least 16 years of age”. The purpose of the provision is to allow children and their spouses to rely on their own period of occupancy of the house, or series of houses, occupied by them from the age of 16 for right-to-buy purposes when they succeed to the rights in that house held by their parents. It has no application to the present case.

[11] Mr Santoni refers to the case of Robb v Kyle and Carrick District Council 1989 SLT (Lands Tr) 78 which was a case under para (v) of subsec (10), which deals with occupation “as a member of the family of a tenant or a person occupying the house rent free who, not being that person’s spouse or child (or child’s spouse) has succeeded, directly or indirectly, to such rights as are mentioned in para (iv) … “. However membership of a person’s family is defined in sec 83 of the Act as including, as well as spouses, parents, grandparents, children, grandchildren, brothers, sisters, uncles, aunts, nephews or nieces. In Robb one of the applicants was the sister of the previous tenant, so the provision was potentially applicable although the Tribunal decided that “succeeded” was confined to having succeeded on death. Cousins are not, however, included in the definition and para (v) cannot therefore apply. That being so, we need not consider the case of Robb, which Mr Santoni sought to distinguish, beyond saying that we respectfully agree with it.

Decision

[12] Both arguments advanced on behalf of the applicants therefore fail. Instead, it seems to us, the position is squarely governed by the eligibility restriction imposed by sec 61ZA on which the respondents take their stand. That provision confines eligibility to buy to tenants who have continuously been in occupation of a house or of a succession of houses since 1 March 2011. Mr and Mrs Barr simply do not fall into that category and this application must, therefore, be refused.


Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 24 April 2017

W Douglas Ballantyne – Deputy Clerk to the Tribunal