Couple who rented stately home granted limited repairing standard appeal

Peter and Beth Dymoke rented a property in Inchture from The Hon. Caroline Best, and appealed against the decision in their two conjoined applications to the First-tier Tribunal for Scotland regarding the state of repair of their property.

The application was heard by Sheriff Pino di Emidio sitting as a member of the Upper Tribunal for Scotland.

Wind and water-tight

The leased property was a large stately home in Inchture. The appellants made applications to the First-tier Tribunal alleging that the respondent had failed to comply with the repairing standard under the Housing (Scotland) Act 2006. The standard was slightly modified by the agreement between the appellants and the respondent, so that the tenants were responsible for ensuring that the property met the standard, with two exceptions. These were that the landlord was responsible for keeping the property wind and water-tight, and for keeping the structure and exterior of the subjects in reasonable repair.

In their two applications to the FtT, the appellants made a number of complaints in relation to the property, including that the gutters were leaking and corroding, and that am external pathway was badly damaged. The complaints also included allegations of dampness in the area near the kitchen. The evidence they gave in relation to this was that there was plaster and paint coming away from the walls, that the rear cloakroom of the property was very damp and had mould in the walls, and that there was evidence of dampness in the kitchen store, pantry, and larder.

The two applications were heard jointly, and the FtT inspected the property. In both applications, the FtT determined that there had been no evidence of continuing failure by the landlord to maintain the repairing standard. The Tribunal also rejected the submission of the appellant’s solicitor that the landlord was bound by the 2006 Act to keep the property reasonably fit for human habitation, as that language was not contained within the restricted landlord’s obligations agreed in the lease.

Permission to appeal was initially denied by the FtT. The appellants went on to seek permission to appeal from the Upper Tribunal. A hearing was fixed to consider the application on account of the applicant’s submissions being very lengthy, with Sheriff di Emidio deciding that some parts of it were worthy of a hearing.

Arguable error of law

In his written judgment, Sheriff di Emidio stated that “[I]t is arguable that the FtT fell into an error of law in that it failed to address the submission made by the appellants’ solicitor. Permission is granted to allow the appellants to argue that the interpretation placed on clause 4.1(c) of the lease by the FtT is erroneous in law. In consequence permission is also granted to a limited extent in relation to the complaints about the guttering and the dampness.” Thus, if the appellants could identify a legal error made by the FtT in relation to them, there could be an appeal on those matters.

In relation to the guttering, he said: “The tribunal noted that it had heard no evidence to support a finding that the building was not wind and watertight as at the date of the hearing. The FtT, albeit briefly, indicated that it did accept that there was evidence that in the past the guttering at this location was not in good condition. In effect, it found that even if the appellant’s evidence was accepted in its entirety, there was no basis for finding that the respondent had breached her restricted obligations. Assuming that the legal test applied by it was correct, the FtT was entitled to approach matters in this way even when the parties had led competing evidence. If the FtT did not apply the correct test then it has not explained what its conclusion would have been if the obligations in section 13(1)(a) and (b) of the 2006 Act applied more fully to the respondent. The appellants have not identified an arguable error of law in relation to the way in which the FtT dealt with this chapter of the case.”

Regarding the pathway, he said: “I consider that it is arguable that the FtT fell into error of law because the reasons given for reaching the conclusion that there was no failure by the respondent to comply with the restricted repairing standard in relation to this company are inadequate. The FtT noted certain evidence of the appellants’ expert at paragraph 38 but does not appear to say what it made of that evidence. It proceeds to take account of the age, character and prospective life of the property without stating what findings it made in relation to those matters. It is arguable that the FtT may have failed to explain what evidence it accepted and what evidence it rejected in relation to this chapter of the case.”

Regarding the dampness, he said: “The FtT expressly accepted that there were occasional water droplets on the flooring of the main passageway and that a wall in the pantry and adjoining room continue to be damp in certain areas. The FtT stated that it did not require to consider whether the property is “reasonably fit for human habitation” as that was not part of the respondent’s obligation in terms of the restricted version of the Repairing Standard under the lease. The FtT was entitled to approach matters in this way only if its approach to the interpretation of clause 4.1.(c) was correct.” Thus, limited permission to appeal was granted in relation only to the interpretation of that clause.

Further observations

As a consequence of other parts of the appellants’ submissions regarding the conduct of the FtT during the hearing, Sheriff di Emidio felt it necessary to add further observations at the end of the decision as the submissions “highlight some matters of concern that might affect the confidence that parties can have in the decisions of the FtT”.

First, there was an observation on the need for accuracy of expression in decisions, as one of the co-tenants was referred to at various points as “the tenant’s wife” rather than as a co-lessee. The Sheriff added: “It is regrettable that the term was not used consistently throughout the decision. I have considerable sympathy with the appellants, and particularly Mrs. Dymoke who might reasonably have thought that she was not being treated as a party to the proceedings.”

Second, there was an observation on the need to intimate decisions to all involved parties in the case. Sheriff di Emidio said of this: “The decision of 8 May 2019 was not intimated to the second named appellant at all but merely to the first named appellant. There may have been a degree of confusion because the appellants were in the course of changing solicitors in relation to other related proceedings then pending before the Upper Tribunal at the very time when the decision of the FtT in these conjoined cases was being issued. For the avoidance of doubt, the Housing and Property Chamber administration ought to be intimating such decisions to all individual parties. There should be no assumption that intimation to one of two applicants is sufficient.”