Landlord refused rent arrears eviction on reasonableness ground granted order on appeal

About this case:

• Citation:
  2025UT19
• Judgment:
  External link
• Court:
  Upper Tribunal for Scotland
• Judge:
  Sheriff S Reid

Appellant Scott Mackellar was able to establish before the First-tier Tribunal for Scotland that his tenant Nicola Carlin was in rent arrears for more than three months, but the Tribunal declined to issue an eviction order on the grounds of reasonableness. He contended in his written appeal that the FTS had made inappropriate conclusions based on the evidence before it.

The appeal was heard by Sheriff Stuart Reid of the Upper Tribunal. Representation for the appellant was provided by Jackson Boyd LLP. The respondent did not participate in the proceedings before the FTS or the Upper Tribunal.

No reasonable tribunal

While the respondent was initially able to pay her full rent of £675 per month, in July 2023 she contacted the appellant to advise there had been a change in her benefits and to seek to negotiate a reduced rent. The appellant refused to reduce the rent, resulting in a shortfall in payments in the following months. Notice to leave was issued in February 2024, with an application to the FTS following when the respondent failed to remove from the property.

Having heard evidence from the appellant, the FTS concluded that the grant of the eviction order would make the respondent homeless and interfere with the schooling of her children. It also considered that, while the respondent was likely to be treated with some priority for rehousing by the local authority, that could result in the provision of temporary accommodation that was not entirely suitable for the family unit.

The FTS went on to consider that there would be no meaningful impact on the appellant, finding that even with the rent shortfall the appellant continued to make a profit from the letting, and even with a further three months’ shortfall the total arrears would not amount to three months’ full rent. Additionally, it was relevant that the appellant had not raised proceedings to recover the rent arrears from the respondent or her guarantor.

It was submitted that no reasonable tribunal would refuse to grant an eviction order where the tenant had not paid rent in full for more than a year. The FTS erred in finding that refusing to grant the order had no meaningful impact on the appellant and in finding that the respondent’s eviction would result in her becoming homeless.

Paltry evidence

In his decision, Sheriff Reid said of the reasoning of the FTS: “There is no basis in the evidence to support the FTS’s finding that the Appellant makes a profit of £400 to £450 per month from letting the Property. The recorded evidence available to the FTS on the supposed profitability of the tenancy is paltry, and certainly inadequate to support any such conclusion.”

He continued: “On the evidence, accepted by the FTS, the Appellant had lost around 20% of rental revenue due from the Property. There was no suggestion (still less any evidenced, vouched prospect) that the Respondent intended (or would be able) ever to clear the arrears or to resume full contractual payments, still less within a reasonable period. That is per se a meaningful impact.”

Considering the finding that eviction was a measure of last resort, the sheriff said: “There is no such rule of law. Hypothetically speaking, it is conceivable, perhaps, that proven rent arrears, though sufficient to establish the statutory ground for eviction, may be at such a de minimis level as to justify a conclusion that it is not reasonable to grant an eviction order. But this is certainly not such a case.”

He concluded: “The FTS has fallen into error in its overall assessment of reasonableness, in respect that no reasonable tribunal could properly have concluded, on the evidence available, that it was not reasonable to grant an order for eviction in circumstances where the tenant (i) has not paid full rent in more than a year; (ii) has not responded to correspondence seeking payment of the arrears or cessation of the persistent ongoing monthly shortfalls in rent; and (iii) has made no proposals whatsoever to clear the arrears or to resume full contractual payments, still less within a reasonable period.”

The appeal was therefore upheld, with the Upper Tribunal proceeding to re-make the decision and issue an order for the eviction of the respondent.