First-tier Tribunal for Scotland makes first unlawful eviction decision

Dambaru Baral raised the action in September 2018 against his landlords, Mohammed and Khalda Arif, based on the conduct of their representative, their son Zahad Arif, in removing him from accommodation that he occupied under an assured tenancy, seeking damages under Sections 36 and 37 of the Housing (Scotland) Act 1988.

The case was heard by advocate Adrian Stalker, a Legal Member of the Tribunal, and Frances Wood, an Ordinary Member of the Tribunal.

‘Changed the locks’

The applicant began occupying the let property in December 2013 under an agreement described as a ‘short assured tenancy,’ which was found in a previous Tribunal hearing to be in fact an assured tenancy under the 1988 Act. The applicant entered into this agreement with Mr Zahad Arif, who acted as the landlords’ representative for the whole duration of the tenancy.

In early December 2015, Mr Arif and another person, Mr Bhatti, entered the property to change the locks and remove Mr Baral’s personal effects while Mr Baral was away from the property. At the time, Mr Baral was in rent arrears, the exact amount of which was disputed, but no formal steps had been taken by either party to terminate the tenancy. The respondents claimed that an oral agreement had been made between the applicant and Mr Arif that the property would be vacated around the end of November 2015. It was accepted in an earlier hearing that Mr Arif had taken possession of the property without a court order, on the defence that he believed or had reasonable cause to believe that the tenant had ceased to occupy the let property.

At the hearing, evidence was heard from Mr Baral, Mr Zahad Arif, and Mr Bhatti. Both Mr Arif and Mr Bhatti suggested that they based their decision that the applicant was no longer living in the property on the appearance of the interior, which they appraised as looking abandoned with nothing of value remaining, and continued with the eviction even after the applicant returned to the property and stated he was still living there. Reference was also made to a note that Mr Arif had previously posted through the flat’s letterbox that went unanswered, but he was unable to produce this at the hearing. No action was taken to recover the key to the property from Mr Baral prior to the locks being changed. Mr Arif stated that it did not occur to him to make such an arrangement.

In respect of the 1988 Act statutory damages, which are calculated based on the difference in the value of the let property with and without a sitting tenant, the applicant’s agents obtained a surveyor’s report that valued the difference at £18,000. The respondents attempted to lodge an alternative survey report the day before the hearing. This report valued the difference at £14,000. This was opposed by the applicant’s representative, on the grounds that documents must be submitted to the Tribunal at least seven days before the hearing without a reasonable excuse. The respondents claimed they had difficulty in finding a surveyor who would give them a valuation for 4 December 2015.

‘Reasonable view’

In its opinion, the Tribunal first set aside the alternative surveyor’s report that the respondents attempted to introduce, saying: “[counsel for the respondents] Mr Bashir was clearly contemplating obtaining a report, as at 8 October. The Tribunal does not accept that there would be significant difficulty in obtaining a desk-top valuation from a surveyor, as at a given date, or that this was a particularly onerous task, which would take more than two months to carry out.”

The Tribunal rejected the defence of the respondents having reasonable cause to believe the tenant had vacated the property, stating: “Mr Arif and Mr Bhatti accepted that they had gone to the flat and filled a number of cardboard boxes with the applicant’s belongings. The record taken by City Building, as indicated at paragraph 30 above, was that there were seven boxes. It is also apparent, from the photographs taken by the applicant, that there were items on top of the boxes. On any reasonable view, the sheer volume of the applicant’s belongings at the tenancy were not such as to indicate that he had ceased occupation.”

Regarding the tenant’s assertion that he was still living in the flat, it said: “Zahid Arif, in answer to a question from Mr Bashir […], disclosed that, when the applicant appeared at the property on 4 December 2015, he told Mr Arif that he was “still there” at the property. It was clear that this meant he was still living there. Significantly, Mr Arif’s answer was to insist that the applicant made an agreement to leave. Accordingly, on his own evidence, he proceeded in the belief that the applicant had made a previous agreement to leave, and ought to be held to it. That is quite different from a belief that the applicant had ceased to occupy the property, as at 4 December 2015.”

Regarding the respondents’ evidence that the tenant had previously agreed to leave, it said: “[T]he Tribunal preferred the applicant’s evidence. That seemed inherently unlikely, given that he had nowhere else to go. The Tribunal also accepted the evidence of the applicant that: following a discussion with Mr Arif, he had sought advice from the police as to whether he could be evicted without a court order; and thereafter, he told Mr Arif that he would not leave without an order being obtained. Even if there had been some prior suggestion that he would leave, that conversation ought to have made it clear, to Mr Arif, that the applicant had not agreed to cease occupation.”

For these reasons, the Tribunal concluded that an unlawful eviction had taken place, and awarded statutory damages of £18,000 based on the surveyor’s reports.

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