OPINION

McGLOINE (Applicant) v GLASGOW HOUSING ASSOCIATION LIMITED (Respondents)

[1] The applicant in this application is Mr Thomas McGloine whose late brother, James, was the tenant of a flat at 3/1, 145 Gatehouse Street, Sandyhills, Glasgow, originally from Glasgow City Council and latterly, following a housing stock transfer, from The Glasgow Housing Association Limited, the present respondents. Although James refused to sign a tenancy agreement with the respondents it is not disputed that he held the house from them under a Scottish secure tenancy in terms of the Housing (Scotland) Act 2001 (“the 2001 Act”). The application is made under sec 71(2)(a) of the Housing (Scotland) Act 1987 (“the 1987 Act”) and seeks a finding that the respondents have failed to issue timeously either an offer to sell or a notice of refusal in respect of James McGloine’s application to buy the flat under the right-to-buy provisions of the 1987 Act. Parties have agreed to the disposal of the application on their written submissions and without a hearing.

[2] The facts of the case are these:

  1. James McGloine was in poor health for some time – a period of months at least – before his death on 21 March 2017 so he mandated his sister, Annemarie McGloine, to act on his behalf in his dealings with his landlords.
  2. On 26 July 2016 she hand delivered an application by her brother to buy his house to the respondents.
  3. Because of the imminent termination of said right-to-buy with effect from 1 August 2016 in terms of the Housing (Scotland) Act 2014, the respondents, like many other public sector landlords, were inundated with applications intent on beating that deadline. In the respondents’ case they experienced a 766% increase in applications in July 2016 as compared with July 2015.
  4. In those circumstances they found it impossible to meet the statutory deadline by which they were obliged to issue either an offer to sell or a notice of refusal in terms, respectively, of sec 63(2) and 68(1) of the 1987 Act. It was not until 12 October 2016, when those deadlines had already expired, that they instructed a valuation of the house from the District Valuer (“DV”), whose office was likewise overwhelmed with valuation instructions prompted by the late rush of right-to-buy applications.
  5. A member of the DV’s staff contacted Annemarie McGloine on 22 March 2017 with a view to arranging a valuation only to be told that, as narrated above, James McGloine had died the previous day.
  6. Following James’s death a period (an inadequate period in the opinion of his relatives) was allowed for the clearing of the house and, that done, on 13 June 2017 Annemarie McGloine handed in the keys to the property to the respondents who subsequently let it to new tenants.
  7. In the interim Annemarie McGloine had asked the respondents if they would sell the house to her at full valuation and without a discount but they refused.
  8. Following this refusal and communication between Annemarie McGloine, the Scottish Public Services Ombudsman and the Scottish Housing Regulator as to how the application to purchase had been handled by the respondents and pursuant to advice given by these officials, the present application was lodged by Thomas McGloine on 16 August 2017.

Parties’ positions

[3] The application is opposed on the basis that James McGloine’s right to buy the subjects died with him and that Thomas McGloine has no title or interest to bring the application. They rely on sec 22 and Schedule 3 of the 2001 Act. The argument in support of the application can be summarised by saying that it is unjust that James’ McGloine’s wish to buy his home has been thwarted by mismanagement on the part of the respondents.

Tribunal’s consideration

[4] James McGloine could have applied to this Tribunal for an order that the house be sold to him under sec 71 of the 1987 Act at any time after the two month period allowed to the respondents by sec 63(2) for the issuing of an offer to sell. He did not do so and the question is whether that right has now transmitted to Thomas McGloine.

[5] Section 22(1) of the 2001 Act provides that “[o]n the death of a tenant under a Scottish secure tenancy, the tenancy passes by operation of law to a qualified person”. Schedule 3 defines who can be a “qualified person” in terms of spouses, civil partners and, where the tenancy is a joint tenancy, a surviving tenant. It does not cover siblings of the tenant. Subsection (3) of sec 22 provides that where there is no qualified person the tenancy terminates. There is no provision entitling an executor to pursue any right in which the deceased was vested at the time of death, such as a right to make an application under sec 71 of the 1987 Act. The definition of tenant in sec 82 does not include an executor of a tenant.

Tribunal’s decision

[6] In the foregoing circumstances we are satisfied that James McGloine’s right to pursue the purchase of his home died with him and that there is nothing which entitles Thomas McGloine to step into his shoes, so to speak, and make this application in place of his brother. Although we very much sympathise with the McGloine family in their disappointment that their late brother’s wish was never achieved due to the respondents and, possibly, the DV’s office not being adequately resourced to deal timeously with the deluge of applications which engulfed them in July 2016, the result is that the application falls to be dismissed.


Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 9 January 2018

W Douglas Ballantyne – Deputy Clerk to the Tribunal