OPINION

Tanviera Nasrin Ahmed and Sakib Hoisain Khan (Applicants) v Glasgow Housing Association Limited (Respondents)

Introduction

[1] The applicants seek two findings. In the first place they seek a finding in terms of Section 68(4) of the Housing (Scotland) Act 1987 (“the 1987 Act”), as amended, that the first applicant has a right to purchase. The first applicant is a secure tenant of the respondents and has applied to buy her house along with her husband, the second applicant, as joint purchaser. The respondents resist the application on the basis that the right to purchase does not apply to new supply social housing, and they purport to have given the first applicant the requisite statutory notice, namely a “notice of limitation” at least 7 days before the creation of the relevant tenancy. The applicants deny having received the notice of limitation as a matter of fact. It also emerged that the notice which the respondents maintain they gave could only have been a photocopy of the original notice. The applicants maintain that giving only a copy notice would be insufficient for statutory purposes.

[2] Secondly, and in any event, the applicants seek a finding in terms of section 71(2)(a) that the respondents have failed to issue timeously a further statutory notice, namely a “notice of refusal” thereby depriving the respondents of the ability to dispute the application to purchase. The respondents do not dispute that no notice of refusal was issued within the prescribed time limits, but maintain that it was not necessary to issue such a notice in order to dispute the right to purchase on relevant grounds.

[3] The relevant parts of the 1987 Act providing for the right to purchase have been repealed by the Housing (Scotland) Act 2014 with effect from 1 August 2016. The present application was made prior to that date.

Legislation

Housing (Scotland) Act 1987 (“the 1987 Act”)

The 1987 Act, prior to the above repeal, provided as follows:

61.— Secure tenant’s right to purchase.

(1) …, a tenant of a house to which this section applies) … shall, subject to this Part, have the right to purchase the house at a price fixed under section 62 …

61F Limitation on right to purchase: new supply social housing

(1) Section 61 does not apply to a new supply social house.

(2) Subsection (1) does not affect the right of a tenant to purchase a new supply social house under this Part if—

(a) the tenant moved to the new supply social house in pursuance of—

(i) an order for recovery of possession made under section 16(2) of the Housing (Scotland) Act 2001 (asp 10), on any of the grounds set out in paragraphs 9 to 15 of schedule 2 to that Act, in respect of a house subject to a Scottish secure tenancy; or

(ii) the operation of section 19(3)(b) , 21(3)(b) or 22(6) of that Act following termination of a Scottish secure tenancy;

(b) the tenant moved to the new supply social house from a house subject to a Scottish secure tenancy in pursuance of a decision by the landlord to demolish that other house as a result of which—

(i) the tenancy of that other house was terminated by written agreement between the landlord and the tenant; and

(ii) the new supply social house was made available to the tenant;

(c) the tenant occupied the new supply social house immediately before the relevant day under a short Scottish secure tenancy which has, since that day, been converted into a Scottish secure tenancy under section 37 of the Housing (Scotland) Act 2001 (asp 10); or

(d) the landlord failed to give the tenant notice (in the prescribed form) of the effect of subsection (1)—

(ii) in any other case, at least 7 days before the creation of the Scottish secure tenancy to which the new supply social house is subject.

(3) In this section—

“new supply social house” means a house let under a Scottish secure tenancy created on or after the relevant day which—

(b) was acquired by the landlord on or after 25 June 2008; and

“relevant day” means the day on which section 143 of the Housing (Scotland) Act 2010 (asp 17) comes into force …

63.— Application to purchase and offer to sell.

(1) A tenant who seeks to exercise a right to purchase a house under section 61 shall serve on the landlord a notice (referred to in this Part as an “application to purchase”) which shall be in such form as the Secretary of State shall by order made by statutory instrument prescribe, and shall contain—

(a) notice that the tenant seeks to exercise the right to purchase;

(2) Where an application to purchase is served on a landlord, and the landlord does not serve a notice of refusal under sections 68 to 70 it shall, within 2 months after service of the application to purchase, serve on the tenant a notice (referred to in this Part as an “offer to sell”)

68.— Refusal of applications.

(1) Where a landlord on which an application to purchase has been served disputes the tenant's right to purchase a house under section 61, it shall by notice (referred to in this Part as a “notice of refusal”) served within one month after service of the application to purchase—

(a) refuse the application or

(b) offer to sell the house to the tenant under section 14, or under any other power which the landlord has to sell the house.

(2) Where a landlord on which an application to purchase has been served, after reasonable enquiry (which shall include reasonable opportunity for the tenant to amend his application), is of the opinion that information contained in the application is incorrect in a material respect it shall issue a notice of refusal within 2 months of the application to purchase.

(3) A notice of refusal shall specify the grounds on which the landlord disputes the tenant's right to purchase or, as the case may be, the accuracy of the information.

(4) Where a landlord serves a notice of refusal on a tenant under this section, the tenant may within one month thereafter apply to the Lands Tribunal for a finding that he has a right to purchase the house under section 61 on such terms as it may determine.

71.— Reference to Lands Tribunal.

(1) Where—

(a) a landlord who has been duly served with an application to purchase fails to issue timeously either an offer to sell … or a notice of refusal;

(c) the Lands Tribunal has made a finding under section 68(4) (refusal of right to purchase) or has made an order under subsection (2)(b) of this section and the landlord has not duly progressed the application to purchase in accordance with that finding or, as the case may be, order, within 2 months thereafter;

the tenant … may refer the matter to the Lands Tribunal by serving on the clerk to that body a copy of any notice served and of any finding or determination made under this Part, together with a statement of his grievance …

(2) Where a matter has been referred to the Lands Tribunal under subsection (1), the Tribunal shall consider whether in its opinion—

(a) any of paragraphs (a) to (c) of that subsection apply, and if it so finds it may—

(i) give any consent, exercise any discretion, or do anything which the landlord may give, exercise or do under or for the purposes of sections 61 to 84 and

(ii) issue such notices and undertake such other steps as may be required to complete the procedure provided for in sections 63 …

84.— Service of notices.

(1) A notice or other document which requires to be served on a person under any provision of this Part may be given to him—

(a) by delivering it to him;

(b) by leaving it at his proper address; or

(c) by sending it by recorded delivery post to him at that address …

Authorities referred to

East of Scotland Water Authority v Livingstone 1999 SC 65
EAE (RT) Ltd v EAE Property Ltd 1994 SLT 627
McCreight v West Lothian Council 2009 SC 258
McIntosh v Alam 1998 SLT (Sh Ct) 19
Maclennan v Dunedin Canmore Housing Association Ltd 2014 SLT (Lands Tr) 25
Park, Petitioners (No 2) 2009 SLT 871
Smith v Aberdeen City Council 2001 Hous LR 93

Texts

Scottish Law Commission , Discussion Paper 154 of 2012 on Formation of Contract.

Procedure

[4] We held a hearing on 3 and 4 October 2017. The applicants were represented by Mr Christopher Sheridan of Sheridans, Solicitors, Glasgow. The respondents were represented by Ms Graham, their in-house solicitor. The applicants both gave evidence. The respondents called Mr Douglas Green, one of their housing officers. During the evidence of Mr Green, we allowed the applicants to lodge a late document, namely, a letter from the respondents to the first applicant dated 23 December 2015. We refused a motion after the closure of the respondents’ case and prior to closing submissions to allow the applicants to put a question to Mr Green concerning whether a docquet upon the notice of limitation was in fact in his handwriting. It was explained to us that Mr Green had left the building by this stage and was, in all probability, on his way back to Glasgow. We allowed supplementary closing submissions in writing on the question of the validity of the copy notice of limitation.

Background facts and circumstances

[5] The factual dispute concerns whether the respondents succeeded in giving a notice of limitation on the right to purchase new supply social housing to the first applicant, timeously, in terms of section 61F(2)(d)(ii) of the 1987 Act. In order to disapply section 61F(1); i.e. in order for the right to purchase to continue notwithstanding a house is new supply social housing, the landlord requires to fail to give the tenant the prescribed notice at least 7 days before the creation of the Scottish secure tenancy. There is no dispute that the house in question is new supply social housing. The notice of limitation is dated 1 March 2016. The tenancy in question was created on 17 March 2016. The applicants both deny having received the notice of limitation until the dispute emerged on or about 24 January 2017. On the other hand the respondents maintain that they handed a copy of the notice to the first applicant on 1 March 2016.

[6] The first applicant applied to the respondents to be rehoused on 15 May 2014 on account of her growing family. In about November 2015 she heard that she was to be successful in being granted a tenancy at a new housing development being built at Roystonhill, Glasgow. She was given a formal offer on 23 December 2015. The letter provided a provisional date of entry of 18 February 2016 with a sign-up interview appointment at 11.00am on the same day. It stated both the address and plot number of the new house.

[7] The new property was being built in the second of a three-phase project, known as phase 1b. The total project comprised 100 new build homes and phase 1b comprised 41 of those. The property in question is 4 Rosemount Place which is a semi-detached house.

[8] There were delays in the construction project. The proposed date of entry was moved back on at least two occasions, and ultimately took place on 17 March 2016. There was no dispute that the applicants met Mr Green of the respondents by appointment in the morning that day. Mr Green required the applicants to pay the first month’s rent in advance and for the first applicant to sign the tenancy agreement. As it transpired the property was only that day being handed over by the builders to the respondents and Mr Green did not have the key. The applicants expressed some concern about having to do the paperwork prior to viewing the property. Nevertheless parties proceeded on the basis that the first applicant would attend the property and meet Mr Green in the afternoon and, assuming the property was acceptable to the first applicant, for the keys to be handed over. This duly occurred and the new tenancy commenced.

[9] The applicant proceeded to apply to purchase the house in May 2016. They both signed the form which we understood to have been mainly filled in by the second applicant. We understood that the form contained errors and another form was submitted on 19 July 2016, resubmitted on 22 July 2016, and was duly acknowledged. The respondents subsequently by letter dated 8 September 2016 acknowledged receipt of the form with an effective date of 25 May 2016.

[10] The application to purchase is in statutory form (SSI 2011/97). Question 7 is in the following terms:-

“New supply social house

Were you given notice at least seven days before creation of the tenancy (or conclusion of missives, where the landlord has purchased your house from you) that your house is a new supply house?

The applicants ticked the ‘no’ box.”

[11] The respondents’ letter of 8 September 2016 indicated that a surveyor would contact the first applicant to arrange an appointment to value the house and stated that when the respondents received the valuation an offer to sell would be sent to her. A surveyor from the Valuation Office Agency wrote to the first applicant on 21 December 2016 confirming that he would be inspecting the property on 12 January 2017.

[12] Then on 24 January 2017 the respondents wrote to the first applicant saying that her housing office had brought to their attention that when she signed the tenancy agreement, she had also been informed that she would not be able to purchase the property through the right to buy scheme and further stated:-

“I enclose a copy of the Notice of Limitation on right to purchase new supply housing which you signed on 1 March last year accepting this limitation.”

The letter enclosed a copy notice of limitation in statutory form (SSI 2010/468). It stated;

“NOTICE OF LIMITATION ON RIGHT TO PURCHASE NEW SUPPLY SOCIAL HOUSING

This notice is to inform you MS TANVIERA NASRIN AHMED (name of Tenant(s)) that you will not have the right to buy the house at 4 ROSEMOUNT PLSCE, ROYSTON, GLASGOW G21 2FE (address) after it is let to you under a Scottish Secure Tenancy …”.

[13] The form requires a signature on behalf of the landlord, which was signed by Mr Green and dated 1 March 2016. The notice continues to give guidance notes in statutory form and, at the foot of the page, contains a handwritten docquet stating “Copy handed to Tenant.”

[14] A subsequent letter from the respondents to the first applicant dated 1 February 2017, from Jane Valentine, Chief Counsel (Property) stated:-

“I further understand, following extensive dialogue with housing colleagues, that you attended your local GHA office (40 Charles Street) on 1 March 2016 with Mr Khan and that the signed notice of limitation on right to purchase new supply social housing was given to you by your housing officer on that day.”

[15] Subsequently there was a meeting on 8th February between the applicants and a Ms Campbell and Mr Henderson of the respondents. The meeting discussed the dispute about service of the notice, which the applicants denied having received. A subsequent letter of 15 February 2017 by Ms Valentine refers to a discussion of that meeting and states:-

“… it remains the position of Glasgow Housing Association that a signed Notice of Limitation on Right to purchase new supply social housing was given to you by your housing officer on 1 March 2016.”

[16] None of the above correspondence expressly purported to be a notice of refusal in terms of section 68. However, it is clear from the terms of the letter of 24 January 2017 that the respondents were refusing to proceed with the sale.

Evidence for applicants

The first applicant – Mrs Ahmed

[17] Mrs Ahmed had lived with her family at a flat in Charles Street, Glasgow as a tenant of the respondents. She first met Mr Green in November 2015, who was to become her housing officer for the new property. She recollected the first meeting was sometime after 2 November 2015, on which date she had chosen kitchen fittings from a display in one of the respondents’ flats. She had signed a form. Although Mr Green has signed the same form dated 2 November 2016, he was not present. When she met him he had given her a map showing her where the new house would be. It was intended to be finished in January 2016.

[18] In her recollection she did not meet Mr Green again until 17 March 2016. This was in the morning at the respondents’ offices at 143 Charles Street. Mr Green had seemed rushed. He had been rude in a telephone call in the run up to the meeting. She had not been given any notice of limitation of the right to buy. The first time she saw such a notice was with the with the respondents’ letter of 26 January 2017 as the purchase was progressing. Under cross-examination she indicated that she had met Mr Green a total of four times in his office, namely the two occasions already mentioned and another two after 17 March 2016. She had met him informally on other occasions but did not recall any informal meeting prior to 17 March. It was not possible that she had received the notice of limitation and forgotten about it. There had been an end of tenancy inspection on 24 February 2016 at her old address. The housing officer for that property was a Denise Black who had visited her in the morning and attended later in the day with new prospective tenants. She knew the transfer was proceeding by this time. She knew she had not visited the respondents’ office on 1 March 2016 because she was cooking that day and had friends at home with children. Mr Green had telephoned at about this time to say that the new house was still not ready and would not be ready until 3 March. That date was then changed to 17 March. On 17 March she had not been happy about paying the rent up front and signing the tenancy agreement before viewing the house. Nevertheless she viewed the house with Mr Green in the afternoon and duly took possession. She moved out of the old property on 24 March 2016.

The second applicant – Mr Khan

[19] Mr Khan’s recollection was that he had only met Mr Green once before the meeting in the morning on 17 March 2016. There had previously been a meeting when Mr Green had given him a plot map for the new houses. He initially thought this was in February or January 2016 but subsequently thought this to have been in November or December 2015. There had been a meeting in November 2015 to choose interiors but that had been with a concierge, not Mr Green himself. They had been briefly introduced to Mr Green by their then housing officer Nicola Logue. Subsequently Mr Khan had not been able to attend the viewing on 17 March because he had a university class in the afternoon. At the meeting with Mr Green in the morning he had asked about the right to buy being transferred from the old house. Mr Green had replied saying there was no right to buy the new house but they would talk about it later. He also had some concern about a delivery of flooring which could not be moved to the new house without the key.

[20] Mr Khan had proceeded to deal with the application to buy and arranged finance. The first he heard about the notice of limitation was via the respondents’ letter of 24 January 2017. At the meeting with the respondents on 8 February 2017, the applicants were not given details of how it was actually said to have been served; only that it “could” have been served at their house or in the street for example. He thought he was not given the actual address for the new property, as opposed to a plot number, until 28 February or 1 March 2016. He thought that in mid-February his wife had been given a piece of paper which had the new address on it. He could not remember the date or what was actually said on the paper. The date of entry to the new property was changed three or four times. They needed to know the new address in order to tell B&Q for the purposes of an order for flooring in February. He did not know the address up until this point.

[21] As far as the respondents’ letter of 1 February 2017 was concerned, he had no recollection of being at a meeting on 1 March 2016. He had been at the university in the afternoon and this was an agreed fact. There had been no meeting on 1 March.

[22] Under cross-examination about the meeting on 17 March, Mr Green had said that they would like the new property even though they had not yet seen it; in other words there was no choice in the matter about accepting it having already paid the first month’s rent and completed the paperwork. When his wife learned the new address in the middle of February, someone had given her papers but he did not think he was with her at the time. He did not think the notice of 1 March would have been dropped through the letterbox since if it had been he and his wife would have seen it. If his wife had been given the notice she would have told him about it. Mr Khan had spoken to someone at the respondents’ head office in January or February 2016 about the right to buy and understood that his wife did have the right to buy.

Evidence for respondents

Douglas Green

[23] Mr Green has been employed by the respondents since 2003; he has been a housing officer since 2011 and was previously an assistant housing officer and an administration assistant before that. He was responsible for managing about 140 tenancies and 40 owner occupied properties in Roystonhill. The 100 new builds at Royston were completed between September 2015 and March 2017. In the second phase known as 1b, there had been massive delays on account of difficulties with power and water. This had contributed to what he termed a tight turnaround, namely, tenants being moved into their new properties on the same day as the handing over of the keys. In the case of phase 1b, the tenants’ first and only viewing and the handing over the keys would occur after the new tenancy agreement was signed by both parties in the morning and the payment made in advance. The new tenants would, however, always like the new house so the fact they had already signed the lease and paid the rent would not be an issue. Had there been an issue he would have cancelled the payment and torn up the agreement.

[24] Mr Green would have met the applicants on 2 November 2015 for the purpose of choosing the kitchen materials. This would be the case where he had signed the form, as he had in this case. He would have discussed the “right not to buy” as he put it.

[25] He was aware that the notice of limitation had to be given to the tenant at least 7 days before the date of entry. He had signed the notice and handed it to the tenant which was standard practice. The tenant did not have to sign anything. It was not possible that the notice had been given on a different date other than 1 March. It would not necessarily be given at a formal meeting. The tenant could happen to be in the office and the opportunity would be taken to give the notice to him or her. The notice would not have been posted. Not all the tenants for the 100 new builds would have been given the notice of limitation. Some had rights which would have continued, in phase 1a for example, where existing properties were being demolished and those tenants’ right to buy would survive. But for phase 1b notices did require to be served, we understood, for all the new tenancies.

[26] Mr Green had no recollection of the meeting of 17 March 2016 or the handing over of the notice; his evidence was based upon his normal practise in the light of the documents. He was clear that he would have given Mrs Ahmed the notice of limitation.

[27] Under cross-examination Mr Green indicated that for the second phase, i.e. the 41 new builds, there was a tight turnaround. The respondents were keen not to lose rent. He had been told by a superior to have the new leases operational as soon as possible. The turnaround in this case had only been slightly delayed by the project delays, as it transpired. He would usually be given a couple of weeks notice by the builder before the building was to be ready.

[28] The respondents used “letting pack 1”; “letting pack 2”; and “letting pack 3” for their tenancies which were downloadable from their system. Letting pack 1 concerned the ending of the tenancy for any particular property being re-let. This was not applicable in the current case which was a new build and had no existing tenant. Letting pack 2 concerned the selection and offer of a tenancy. This stage included a record of the selection process for the applicant to the particular property, an accompanied viewing checklist which we understood would contain the tenant’s acceptance of an offer for the rental of the property, having viewed it, as well as a statement of the prospective date of entry. Letting pack 2 also included the notice of limitation in statutory form. Letting pack 3 contained the actual tenancy agreement and certain other records.

[29] Letting pack 2 also included a tenancy report of the condition of the tenant’s existing property prior to its being made available to another tenant. The documents in letting pack 2 were designed to be completed sometime prior to the signing of the new tenancy agreement in letting pack 3. But in this case certain parts of letting pack 2, in particular the accompanied viewing checklist, was completed on the day of entry 17 March. Mr Green had completed the tenancy report on 1 March which included a report on the condition of Mrs Ahmed’s existing flat. He had taken this information from Nicola Logue who sat next to him in the office and apparently had that information to hand. This form was unsigned: Mr Green had simply written her name on the foot of the form. He would also have downloaded the notice of limitation in order to hand this to the tenant at least seven days in advance. There was detailed questioning of Mr Green on how the forms were filled in, and he accepted certain errors were contained in internal documents. Mr Green was under pressure and had a high workload. The notice of limitation would normally be issued at the time of viewing, but this was not the case for phase 1b.

[30] Mr Green had no recollection of a meeting on 1 March 2016 with Mrs Ahmed and Mr Khan as described in the respondents’ letter of 1 February 2017, nor having discussions about that meeting with colleagues. He had no actual recollection of handing over the notice to Mrs Ahmed on 1 March. The fact he had done so was a matter of inference from the signed and dated notice. He had no recollection of the 17 March meeting. He did not really remember any of the sign-up meetings for the 41 new tenants for phase 1b. He had signed the notice of limitation and written the docquet ”copy handed to Tenant.” He could not understand why the date 1 March was typed through a line; one would normally expect the word processor to delete the line.

[31] During his evidence it became apparent that the respondents had kept the original notice of limitation with Mr Green’s signature. What would have been handed over was a photocopy of what he had signed. Other types of notices issued by the respondents, e.g. notices of abandonment, were usually originals and put through the door of a tenant. He could not remember the usual practice i.e. whether it was originals or copies of limitation notices handed over for the prospective tenants of phase 1b.

[32] Mr Green had some recollection of a letter being sent to Mrs Ahmed about the need to give 28 days’ notice in order to terminate the previous tenancy. This may have been sent to her in February.

[33] In questions from Tribunal members, Mr Green indicated that the need for the notice of limitation would be triggered by communication from the builders when the house would be ready. This might give some four to six weeks’ notice. This would prompt him to generate the notice from letting pack 2. The notice would however only be run off the system when the tenant came into the office. He would keep a tick list of those tenants who still required to be given the notice. It was rare for him to go to the house to hand over the notice. Normally the tenants would come into the office. Such an occurrence would not be pre-arranged but it was very likely that tenants would be coming into the office in any event. They would need to terminate their existing tenancy and for new builds it was the case that the tenants would come into the office quite often. So in the present case for the notice to be dated 1 March, he would have known that the applicants were coming into the office that day. If a tenant did not come in to the office while the deadline for the notice was approaching, he would telephone the tenants to bring them in. At that point there would be a discussion to explain the purpose of the notice of limitation.

[34] In re-examination Mr Green estimated that he would require to see between 20 and 50 tenants per week. He worked in the same group of housing officers as Denise Black and Nicola Logue. The notice of limitation would usually be signed in front of the tenants, although he could not remember the actual signing in this case.

Applicants’ submissions

[35] The first submission concerned the factual issue whether the notice of limitation was actually given. It was submitted that the onus of proof was on the respondents. It was not for the applicants to prove a negative; i.e. whether in terms of Section 61F(2)(d)(ii) the respondents had failed to give the notice of limitation. In any event the issue of the giving of the notice should not be determined on the basis of onus of proof, since both parties had given evidence and one parties’ version of events should be preferred to the other.

[36] It was submitted that both applicants were credible and reliable witnesses. They had not simply given evidence that “fitted” the documents; e.g. they were clear that they had not met Mr Green at the 2nd November 2015 viewing of kitchen finishes etc., in which the relevant selection form had been signed by both Mrs Ahmed and Mr Green. It was accepted that Mr Khan’s evidence about dates was less clear, and had changed his position regarding the date of the first meeting with Mr Green; but he had simply corrected his position during his evidence-in-chief without any intervening adjournment. Both applicants were clear that the notice of limitation had not been given to them and there had been no meeting with Mr Green on 1 March 2016. On the other hand Mr Green had no recollection at all; all he could say was that there would have been such a meeting in the light of his signature upon the notice of limitation. He had no recollection of meeting both applicants, as indicated in the respondents’ letter of 1 February 2017, which raised a question as to how the information in that letter came to be provided. Our attention was drawn to various “errors” in the letting packs, in particular, certain boxes completed in the letting pack checklist. Mr Green had filled in the tenancy report himself, and printed the name of another housing officer as having prepared that report, but who had not signed it. It was submitted that this appeared irregular.

[37] It was also submitted that although Mr Green had signed the notice of limitation, it appeared that the words “copy handed to Tenant” were not in his handwriting. The letter “T” appeared quite different to the way that capital letter was written in other documents in Mr Green’s hand, e.g. the tenancy report. Unfortunately this point had not been put to Mr Green.

[38] Mr Green had been put in an impossible position, he was having to complete documents at a late stage and out of their intended order. His evidence was not reliable or credible.

[39] Turning to the legal issues, it was submitted that providing the tenant with only a copy of the notice of limitation was ineffective as a statutory notice. Section 61F requires the notice to be in the prescribed form. The reference to a prescribed form removed from the landlord any discretion as to how the notice should be given. There was no evidence that the original notice was ever displayed to the applicants or signed in their presence since Mr Green could not remember the meeting which was said to have occurred. There was no statutory language as would permit the giving of a copy of the original notice; this could be contrasted with, for example, Rules of Court providing for the service of “copy” writs.

[40] Reference was made to the Scottish Law Commission discussion paper on Formation of Contract (No. 154 of 2012) whose conclusions at paragraph 7.7 were unclear as to the validity of delivery of copy documents. That discussion paper had brought about the Legal Writings (Counterpart and Delivery) (Scotland) Act 2015. That Act allowed for the delivery of copy documents by electronic means, but since it was not being suggested that the document was being delivered by electronic means the 2015 Act did not apply. Reference was made to Erskine to the effect that a writing, while remaining in the granter’s own custody, is not obligatory. It was necessary for there to be statutory provision in order to depart from the principle of delivery. Reference was also made to the first applicant’s previous lease of 2008 which contained the condition “If we want to send you any documents, we will send it to your house.” This provision was not complied with by handing over a copy document at a meeting. Mr Green’s usual practice for other types of notice had been to deliver the principal.

[41] Moreover, the respondents had failed to challenge the application to purchase by means of a timeous notice of refusal. The two month period in which to ascertain whether the information contained in the application was incorrect (section 68(2) had expired. In accordance with East of Scotland Water Authority v Livingstone it was not possible for the landlords to state a defence to the application outwith the statutory timetable. In the light of Smith v Aberdeen City Council this included the case where the information in the application form was incorrect, although there might be other remedies where the application was fraudulent.

[42] The Tribunal had distinguished Livingstone in Maclennan v Dunedin Canmore Housing Association Ltd. That was a case where Scottish Ministers had made an order suspending the right to buy in terms of section 61A(3). The Tribunal said at [17]:-

“At all events, the reasoning of the majority in Livingston relates to ‘a tenant’ and not to the house, there having been no issue about the application of s61 to the house in question. We can see a difference between requiring a landlord to consider in an individual case whether the particular tenant is a qualifying tenant and requiring a landlord none of whose housing is effected by the ‘right to buy’ to go through the formality of refusing individual applications.”

[43] It was submitted that the present case was in the former category and thus Livingstone was indistinguishable.

Respondents’ submissions

[44] It was submitted that Mr Green was a credible and reliable witness and indeed a commendable witness. The onus of proof was on the applicants to show that the respondents had failed to give the notice. It was submitted that the first applicant was not a credible or reliable witness. She had changed her position about having four meetings with Mr Green by accepting there were informal meetings as well, and had gone from saying that there had been no meeting prior to 17 March as opposed to saying she could not remember a meeting with him prior to 17 March. It was surprising that she could so clearly remember what in her view happened on 1 March 2016. Mr Khan’s evidence was unclear on dates and he was not credible about needing an address for the B&Q delivery in February 2016 since the applicants had already been given the actual postal address as well as the plot number. This emerged from a letter by the respondents dated 23 December 2015 which was only lodged after Mr Khan’s evidence was given so could not be put to him. His evidence to the effect that Mrs Ahmed had been given a piece of paper with an address on it, albeit in February 2016, was (apart from the dates) not inconsistent with the possibility that the notice of limitation had been given to her on 1 March. It was submitted that on the evidence section 61F(1) had not been disapplied by failure to give the notice.

[45] Turning to the issue of the copy notice of refusal, it was submitted that the evidence indicated that Mr Green had signed the original notice in front of the first applicant and then a copy was handed to her. In terms of section 61F(2)(d) the issue was whether the landlords had “… failed to give …” the tenant the notice in prescribed form. It was submitted that the word “give” rather than “serve” suggested a more informal approach. There was no requirement in the 1987 Act or the statutory form SSI 2010/468 to require the notice to be formally served or for only the principal notice to be issued to the prospective tenant. Whether or not the prospective tenant received the original or copy made no practical difference. Reference was made to the Civil Evidence (Scotland) Act 1988 and the Legal Writings (Counterpart and Delivery) (Scotland) Act 2015 which, in the situations covered by those Acts, meant there was no difference between originals and copies and originals and documents sent in electronic form.

[46] Turning to the late notice of refusal, it was submitted that Maclennan was in point. If the application was incompetent it did not matter that there was no notice of refusal, since there was no right to buy. The present facts were closer to that case in which a competent application could not be made in respect of the house to which section 61 had been suspended. Here the right to buy the house had been disapplied by the notice of limitation. There could only be a failure to serve a notice of refusal if the application was a competent one.

[47] Finally, the respondents made a bold submission that the Tribunal should exercise its powers under section 71(2) (“… may … do anything which the landlord may … do under or for the purposes of Sections 61 to 84 …”) and issue a notice of refusal in terms of section 68 on the basis that the notice of limitation had been successfully issued.

Discussion by Tribunal

Notice of limitation – validity of copy

[48] On any view of the facts of this case, at best for the respondents only a copy notice of limitation was given to the first applicant. Mr Green’s position was that a photocopy would have been given to the tenant. Although his evidence was not particularly clear on this point, the inference is that the copy taken was of the completed and signed notice. For the purpose of this part of the discussion, and prior to considering the facts in detail, we shall assume that to have been the case.

[49] Section 61F(2)(d) requires the notice of limitation to be given in the prescribed form. It is clear from the face of the form that it requires to be signed on behalf of the landlord. There is an express place for the signature. So, on the face of it, if only a photocopy of the signed form is used, the section will not be complied with because the photocopy does not contain the actual signature. There is nothing in the legislation which suggests that a copy of the form may be used instead.

[50] It is apparent from section 61F(2)(d) that it is the prescribed notice which requires to be “given” to the tenant. We would tend to agree that section 84 does not prescribe all ways in which a notice may be served, or indeed “given.” We note that “serve” and “give” are both used in the same sentence, thus we do not attach much significance to the difference in terminology. What is apparent from the language is that the particular piece of paper required to be physically put in the possession of the tenant in some way; if the law requires only the original notice to be given, it would not seem to matter whether the original was signed in the presence of the tenant or not.

[51] It was not suggested that the Civil Evidence (Scotland) Act 1988, or the Legal Writings (Counterpart and Delivery) (Scotland) Act 2015 applied in terms to this case. Nor was it suggested that the Requirements of Writing (Scotland) Act 1995 applied to a statutory notice of this type. Nevertheless we found helpful the reference to the Scottish Law Commission discussion paper which preceded the 2015 Act. Paragraph 7.7 stated as follows:-

“… In the case of contracts relating to land, where the current law requires formal signed writing to the exclusion of digital or electronic writing, there are conflicting decisions on whether transmission of a copy by way of fax is delivery of the document. The position probably is that the actual writing must be delivered physically in such cases, and that transmission by fax or email attachment is not enough.”

[52] The Scottish Law Commission cite a number of cases in respect of this proposition, the most recent of which is Park, Petitioners (No 2). Temporary Judge M G Thomson QC held that a faxed transmission of a qualified and final acceptance were insufficient for the conclusion of missives on a particular date. The Requirements of Writing (Scotland) Act 1995 applied and, in particular, under section 2, it was necessary for the document to be subscribed by the granter of it. He placed emphasis on the delivery rule which was as long as a writing remained in the granter’s own custody, he was free to change his mind and destroy it or at least not to deliver it. In the case of a fax a copy of the writing is created electronically in the hands of the recipient. At paragraph [24] he held:-

“In my view the practical difference is that in delivery by hand or by post the granter has put the writing beyond his control whereas a transmission by fax leaves the principal in the hands of the granter. In that state of affairs it is not self-evident that the granter has come to a final resolution to oblige himself by the terms of the writing in question.”

[53] This reasoning is not far removed from present circumstances. The relevant statute requires the notice to be signed, but the principal has remained in the hands of the giver of the copy notice. It is not therefore self-evident whether that party has come to a final resolution as to give the notice. There was no suggestion, for example, that Mr Green attempted to certify the copy notice as a true copy.

[54] The above passages also refer to EAE (RT) Ltd v EAE Property Ltd. In that case it was held that a rent review clause which required “notice in writing” to be given, was validly given by a facsimile transmission and notice to the tenant’s agents by personal delivery of a copy of the notice. Lord Clyde held:-

“After transmission was complete there was a notice in writing in the hands of the defender on the due date. If, as I hold, there is no necessity for a particular piece of paper constituting the notice to be the piece of writing which passes from the landlord to the tenant and no restrictions are placed on the method used, it seems to me that the fax transmission satisfies the requirements of the lease.”

[55] There is a certain superficial similarity between the facts of EAE (RT) Ltd and the present case, although in the former the notice was contractual and in the latter the notice is statutory. However, there is a significant difference in the present case since, unlike EAE (RT) Ltd, there is a necessity for a particular piece of paper constituting the notice to be the piece of writing which passes from the landlord to the tenant. The form of the notice is prescribed by statute, and, as the applicants have pointed out, there is nothing in the statutory provisions which appear to permit the giving of a lesser form of notice than the principal.

[56] In these circumstances we consider that the authorities tend to suggest that giving only a copy notice would not be sufficient for the purpose of giving notice in terms of section 61F(2)(d). We would therefore take the view that the copy notice was invalid. However, as will become apparent, this finding is not necessary for the determination of the case.

Notice of limitation – whether copy given

[57] We now deal with the factual issue. The structure of section 61F is that the right to purchase under section 61 does not apply in the case of a new supply social house, unless certain circumstances exist in terms of subsection (2). These include under sub-paragraph (d) where the landlord has failed to give the notice of limitation within 7 days of the creation of the new tenancy. As the current property consists of new supply social housing, the initial statutory assumption is that the right to purchase does not apply. Only if the landlord has failed to give the notice does the right to purchase survive. We would therefore read sub-paragraph (d) as a statutory exception. As a matter of statutory interpretation, it would normally be for the party relying upon the exception to prove it. Thus we think the onus is upon the applicants to show that the respondents failed to give the requisite notice. That said, both parties having given evidence on the matter, we agree with the applicants’ submission that we should be slow to determine the issue upon onus of proof.

[58] The issue comes down to whether, on the evidence, the notice of limitation was “handed” to Mrs Ahmed. In this respect we do not think anything turns upon the terms of section 84(1) as to service of notices. The only factual scenario advanced by the respondents’ only witness, Mr Green, was that the notice must have been handed by him to Mrs Ahmed on 1 March 2016. His position was that it was very unlikely to have been handed to her anywhere other than at the respondents’ offices.

[59] We have found this to be a difficult issue to resolve, and to this end have written a relatively lengthy narrative of the evidence. Both Mrs Ahmed and Mr Green struck us as honest witnesses. We were less willing to accept Mr Khan’s recollection of events. For example in terms of his credibility it is possible he was confusing the date when he was provided with the new postal address with the date when he was given the final and correct date of entry which had already been postponed on several occasions. However, given that he is not the tenant upon whom the notice required to be served, his credibility and reliability is of less significance.

[60] We do not think the criticisms of Mrs Ahmed’s evidence amounted to very much. We are inclined to accept that she had had no meetings, formal or informal, with Mr Green before 17 March, apart from a short meeting in November 2015, as her honest recollection. The possibility of documents being sent or given to her in February 2016 was not really explored. Mr Green accepted that a letter was written to her in February; she also accepted that she had had contact with housing officers in February. However, this does not really address the central question of whether there was a meeting, or not, with Mr Green on 1 March at which the copy notice of limitation was given to her. Whether Mrs Ahmed could be wrong about this now requires to be considered in the light of the respondents’ evidence.

[61] We think that the evidence demonstrates that the respondents’ procedures for signing up tenants to the new properties were unsatisfactory in the given circumstances. This was due to the fact that there was no void period between the date of the new house being handed over by the builders, and the date of entry for the first tenant. A nil void period for a new property is unusual in our experience. Furthermore, not only was the tenant handed the keys on the same day as first viewing the property, but he or she was required to sign a tenancy agreement and pay a month’s advance rent prior to even seeing the property. The first and indeed only viewing would only take place later in the day. This was said to have been due to pressure to obtain a quick turnaround.

[62] The practical consequence of the above was that the “selection and offer” period – i.e. the requirements of “letting pack 2” – were largely carried out on the same day as the “sign up and date of entry” requirements of “letting pack 3.” These two stages in the respondents’ routine were designed to be carried out at different stages. The letting pack 2 comprised the paperwork for, amongst other things, the accompanied viewing and the provision of the notice of limitation. Mr Green conceded that the accompanied viewing and the giving of the notice of limitation would normally take place on the same day. These were no doubt intended to occur a reasonable time before the letting pack 3 stage, namely entry and signing of the tenancy agreement. But in the situation of the immediate turnaround, since the notice of limitation was contained within letting pack 2, it meant that Mr Green had to remember to deal with that matter a certain number of days before dealing with other letting pack 2 and 3 matters. If he dealt with the notice of limitation at the same time as he dealt with other letting pack 2 and 3 matters on the day of entry 17th March, the notice would be too late. He appears to have been reliant upon his own tick list – ultimately we understood to comprise some 41 tenants for the second phase of the project – in order to remember whether he had given each tenant the notice or not. The notices were not routinely issued to the relevant tenants, but rather the procedure appeared to be that the respondents would simply wait until the tenants happened to come into their offices to discuss something, at which point the opportunity would be taken to give them the notice. We were not provided with the tick list or given any explanation for its absence. In these circumstances we think there was real opportunity for error and a late notice if the tenant chose not to visit the respondents’ offices at the convenience of the respondents.

[63] In the present case, it is at least possible that this risk could have been compounded due to the fact that the date of entry was already delayed on several occasions. Each time a delay occurred there would have appeared less urgency about issuing the notice of limitation, since a further period would be given for giving the notice, but without the tenant necessarily needing to come in to the office to discuss some new issue in the intervening period. As Mrs Ahmed had a young family we got the impression it would not necessarily have been convenient for her to visit the respondents’ office without a certain amount of pre arranging, even although the offices were not far from her house.

[64] As we have indicated, the only factual scenario which fits with Mr Green’s evidence is that he handed the notice to Mrs Ahmed on 1 March at the respondents’ offices. Her position is that she was not there that day and in any event did not receive the notice. It is an agreed fact that Mr Khan could not have been at the offices that afternoon, since he was attending a university course elsewhere. The respondents do not have any minute of a meeting on that day; all there is, is the docquet which gives no detail as to where, when or by whom the copy notice was “handed.” We were not shown examples of service of any other limitation notices by the respondents.

[65] We accept Mr Green’s evidence that he prepared a tenancy report on 1 March 2016, but the information as to the condition of the existing property would have had to have come from another housing officer, not Mr Green. Accordingly it was not suggested on the basis of this document that Mr Green met Mrs Ahmed on 1 March. Mr Green did not suggest that he himself would have visited the old property for the purposes of this report. Mrs Ahmed had recollected discussions about the condition of her existing property a few days before 1 March with a housing officer Denise Black, and we find this is consistent with the report form being filled in by Mr Green, in the name of Ms Logue, a few days later on the basis of that meeting. We understood that Mr Green, Ms Black and Ms Logue were part of the same team. It was suggested that Mrs Ahmed’s recollection of dates was too good to be true, however, on our analysis we think the above simply indicates that she had a good recollection for dates.

[66] We note that the respondents kept the original signed notice. Leaving aside the legal issue of the validity of giving only a copy notice, it seems to us somewhat surprising that only a copy should be issued of what is an important statutory notice. Had it been the other way round, i.e. the respondents had only retained a copy of the notice, we would have been more inclined to accept that the document, i.e. the principal, had been duly given.

[67] We also note Mr Green’s evidence that when handing over the notice of limitation, he would have given the tenant some explanation as to its contents. Had the contents of the notice been effectively explained at the point of its being issued, we would not have expected the applicants, and Mr Khan in particular, to have queried the right to buy at the 17 March meeting. Nor would we have expected, in the normal course of events, for the applicants to have proceeded with the application as soon as May 2016 had the position been explained to them in this way. We do not think it conceivable that Mrs Ahmed would not have discussed the notice with Mr Khan had the notice been given to her.

[68] On a separate point we are troubled by the fact that the respondents’ letter of 1 February 2017 indicates that Mr Khan was at the respondents’ office on 1 March 2016 when the notice of limitation was said to be given to Mrs Ahmed. Had that information come from Mr Green, we would have expected him to have remembered saying that to his colleagues, but he did not remember. As only Mr Green gave evidence, this point could not be explored with other staff of the respondents.

[69] We now turn to the suggestion that the docquet “copy handed to Tenant” is not in Mr Green’s handwriting. Unfortunately, as we have discussed, this point was not put to Mr Green. As we noted his position, he indicated that those words were written by him. We are inclined to agree with the applicants, as far as it goes, that there are aspects of the writing which appear different to other writings of Mr Green before us, in particular, a capital “T” on the docquet appears different to that letter as written by him elsewhere in the papers. However, we are not handwriting experts and we do not think there is anything like a sufficient analysis to justify a conclusion that a different person to Mr Green wrote the docquet. We therefore give no weight to the suggestion.

[70] Nevertheless, in all these circumstances on balance of probability, had it been necessary for our decision, we would have tended to the view that Mrs Ahmed was not handed a copy notice of limitation on 1 March 2016. We think that the most likely explanation is that Mr Green, who appears to have been under significant pressure of work, and having generated and signed the notice in expectation of meeting her, mistakenly came to think that he had made and handed a copy notice to her, but in fact had not managed to do so. Quite how this happened in the rather chaotic prevailing circumstances was not explained, but we think it is the most probable inference. However, given our conclusion on the legal issue below, this factual conclusion is also unnecessary for our decision in this case.

Notice of refusal

[71] We now turn to the question of late notice of refusal under section 68. Whether or not the respondents’ letter of 24 January 2017 constitutes a notice of refusal in terms, it is clear that no such notice was sent within two months of the application to purchase as provided by subsection (2). Section 63(2) further provides that where there is no notice of refusal, the landlord “shall” serve an offer to sell within two months of the application to purchase. The question here is whether for any reason the respondents are not now precluded from arguing that the right to purchase was limited in terms of Section 61F.

[72] The majority in Livingstone held that a late notice of refusal resulted in the respondents being too late to argue that a tenancy was not a secure tenancy. The landlords wished to argue that the house was occupied under a contract of employment and not, therefore, under a secure tenancy for which there was a right to buy. Nevertheless, given the statutory timetable, Parliament could not have intended that it was open to landlords to set out a defence outwith the prescribed periods. Similarly in Smith the local authority sought to argue that the applicant did not qualify as a secure tenant as the subjects were not her principal residence and had made fraudulent misrepresentations to the contrary in her application. The Tribunal decided that there was nothing to take the matter out of the ambit of the decision in Livingstone. Since there was no timeous notice of refusal, the Tribunal did not have jurisdiction to consider the issue of the tenant’s qualifying status. In essence there was no provision which allowed a landlord to bring the disputed issue before the Tribunal.

[73] We note that the Tribunal did distinguish Livingstone in Maclennan. In Maclennan the Tribunal had been influenced by the decision in McCreight v West Lothian Council where the Lord Justice Clerk had pointed out that the effect of the applicant’s argument would be that a squatter might apply to purchase and, if there was no notice of refusal, become entitled to enforce the purchase by applying under section 71. In McCreight, Livingstone was distinguished on the basis that the very relationship of landlord and tenant was in issue, and that only a “tenant” could refer the matter to the Tribunal under section 71. The owners of the property were entitled to have this preliminary issue determined by the courts. This is a very different situation to the present case and, indeed, to the situation in Maclennan. The distinguishing feature in Maclennan appears to have been that there was a block suspension on the right to buy the landlord’s housing stock by an order of Scottish Ministers. The Tribunal held that there appeared to be a difference in the application of section 61 between the qualification of a tenant (as in Livingstone) and, as it were, the qualification of the house (para [17], quoted above) to be subject to the right to buy.

[74] In short, we can find no reason to distinguish the current circumstances from those in Livingstone and Smith. The application to purchase requires to contain an answer to the question whether notice had been given, seven days before the creation of the new tenancy, that the house was a new supply house. This question is prescribed by the relevant statutory instrument. In terms of section 68(2) the landlord has two months in which to enquire whether such information in answer is correct or not. If not, there is provision for the service of a notice of refusal in that period.

[75] Whether section 61F(1) has been disapplied is fact sensitive and will depend upon the various potential grounds referred to in subsection (2). These include, for example, whether under ss(2)(a) the tenant was being moved on the basis of what are termed “management” grounds. Or under ss(2)(b) whether the tenant is moving to the new house because of a decision by the landlord to demolish the old house. We understood this to be the case regarding the earlier phase of the project, in which certain tenants would have retained the right to buy the new supply social housing since their existing houses were being demolished. We consider these are the sort of matters which the landlords would be expected to check and confirm during the relevant period following the application to purchase. We see no reason why this should not also be the case where the landlord wishes to maintain that a notice under ss(2)(d) has been given, and dispute any statement by the tenant to the contrary. Therefore, we conclude that the type of issue here, namely the existence of a timeous notice of limitation, is the type of issue which Parliament expected to be addressed within the two month period of section 68(2). The matter simply falls to be dealt with under the statutory timetable. So we think that the absence of a timeous notice of refusal does preclude the respondents founding upon section 61F(1) in these proceedings.

[76] In any event, if Maclennan correctly distinguishes Livingstone, then following the Tribunal’s logic it is still fair to say that the landlord does require to consider in any new supply case whether the particular tenant qualifies. This falls to be done by considering the accuracy of the information in the application form, and whether the particular tenant has received the relevant notice. It cannot be said that there is a blanket exemption in favour of the respondents or their housing stock from the right to buy in section 61F cases. The exemption is only conditional on the facts of any given case. The situation in Maclennan was therefore markedly different to the present. We pass no comment upon whether the logic in Maclennan is persuasive on its own facts.

[77] We now turn to the respondents’ argument that the Tribunal should exercise its powers under section 71(2) to “do anything which the landlord may … do under or the purposes of sections 61 to 84”; in this case to issue a notice of refusal on behalf of the respondents. We consider this argument is misconceived. Where there has been no notice of refusal within the statutory timetable, the landlord “shall” in terms of section 63(2) serve the offer to sell. Where the landlord fails to do so, it is the tenant who may refer the matter to the Lands Tribunal in terms of section 71(1). The powers of the Tribunal under subsection (2) are therefore powers at the instance of the tenant, not the landlord. We consider that any other interpretation would subvert the intention of the Act. There is nothing in the Act which suggests that the Tribunal should, as it were, rescue a landlord from its failure to comply with the statutory timetable in its own interests, far less where the application is at the instance of the tenant.

Conclusion

[78] In these circumstances we consider that the application is well founded and would propose to grant the application. We therefore now make the initial finding in terms of section 71(2) that the respondents have failed to make an offer within the meaning of section 71(1)(a). We do not propose to go on to take the necessary steps on behalf of the respondents in order to make a formal offer. We consider that it would be preferable in the meantime to allow the respondents one month to consider their position and, if so advised, continue with the sale process. After that, parties may refer to us should any further formal order be required.


Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 21 November 2017

Neil M Tainsh – Clerk to the Tribunal