Housing tribunal awards £2,400 to former tenants of landlord who sold property after claiming he wanted to live in it

Lesley Munro and Grant McNicoll argued that they would not have left the property had they not been given notice to leave by their landlord, David Ross. They argued that the reason their landlord had given them for giving notice to leave was erroneous given his conduct after they left the property.

The application was heard by FtT legal member Paul Doyle and ordinary member Helen Barclay. All parties appeared without representation at the telephone hearing.

19 days in possession

The respondent leased the property in Dennistoun, Glasgow, to the applicants under a private residential tenancy in February 2018 at a rent of £800 per month. He served a notice to leave on them in December 2020 under the ground that he intended to live in the property, per ground 4 of schedule 3 to the Private Housing (Tenancies) (Scotland) Act 2016, giving them until 6 March 2021 to vacate the property.

On 18 December 2020, the applicants served their own notice to terminate the lease as they had found alternative accommodation. The tenancy subsequently came to an end on 13 January 2021, at which time the respondent moved into the property. However, on 2 February 2021, 19 days after taking possession, the respondent instructed estate agents to market the property for sale, and subsequently accepted an offer with a date of entry of 30 March 2021. At the time of the hearing, the respondent was yet to purchase a new property.

It was the applicants’ position that they were happy with their tenancy and would not have left if they had not been given notice. At a previous case management discussion, the respondent was asked by the Tribunal to provide evidence explaining his sudden change in intentions. At the hearing, he relied on oral evidence that he had instructed a Homebuyers report on 2 February 2021 and that he had attempted to reach an extrajudicial settlement with the applicants.

No coherent explanation

In its decision, the Tribunal noted: “In just 19 days, the respondent’s position changed from recovering possession of the property so that he could use it as his own home, to selling the property on the open market. That is such a significant change in intention that it is realistic to expect the respondent to be able to explain what happened in two and a half weeks to create such a radical change in his intentions.”

The members said of the respondent’s evidence: “The problem for the respondent is that he cannot give a coherent explanation for such a significant change of heart. When asked a straightforward question, the respondent was evasive and prevaricated. The respondent blamed his financial difficulties; he then cited physical health problems, before finally blaming the Covid-19 pandemic.”

They continued: “What we are left with is an unexplained change in the respondent’s position. All parties agree that the respondent sought to terminate the tenancy agreement on the basis that he intended to live in the property. If the applicants had done nothing in response to the notice to leave, the respondent could have raised an application for repossession with this chamber of the First-tier Tribunal for Scotland. In any such application, the tribunal would look for evidence that the respondent intends to live in the property for at least three months.”

The Tribunal concluded: “The applicants only brought the tenancy of the property to an end because they received the notice to leave stating that the applicant wants to recovered possession of the property so that he can use it as his own home. On the facts as we find them to be, 19 days after recovering the property the applicant marketed it for sale. The only realistic conclusion that we can reach is that the respondent misled the applicants, and, as a result of his misrepresentation, the applicants surrendered occupation of the property.”

Assessing the total penalty that ought to be imposed, with a potential maximum of six times monthly rental, the Tribunal explained: “In assessing the quantum of the wrongful termination order we take into account of the impact of the respondent’s actions, the duration of the dishonesty, [and] the respondent’s continued adherence to that dishonesty. Against those aggravating factors, we balance the fact that the respondent has some health problems and his financial situation has been better.”

The Tribunal therefore considered that a penalty of £2,400, three times the amount of the monthly rent, appropriately reflected the gravity of the respondent’s actions.