Upper Tribunal finds tenancy of farmhouse validly substituted for short assured tenancy, allowing for eviction of tenant

About this case:

• Citation:
  2023UT25
• Judgment:
  External link
• Court:
  Upper Tribunal for Scotland
• Judge:
  Sheriff Simon Collins KC

Appellant Phillip McCallum sought to argue that a previous agreement to terminate his assured tenancy of a farmhouse in Kirkgunzeon, Dumfries, and create a new short assured tenancy was ineffective. Roger Wright, the landlord, had applied for recovery of possession in October 2022 on the basis of a valid short assured tenancy.

The appeal was heard by Sheriff Simon Collins KC. The appellant represented himself while the respondent was represented by Dunlop, advocate.

Interests of tenants

The appellant originally entered the let property under an unwritten assured tenancy agreement in around 1993. On 8 September 2006 the then-landlord served on the appellant an AT5 as a prerequisite to the creation of a short assured tenancy. A written lease bearing to be a short assured tenancy was then executed on 1 October 2006. The landlord’s interest in the property was later acquired by the respondent following the death of his aunt in 2019.

It was the appellant’s position that he only signed the new lease to “trick” the original landlord, in the belief that it was ineffective in law to create a short assured tenancy. Before the First-tier Tribunal he argued that the 1988 Act precluded the parties from contracting out of statutory provisions designed to safeguard the interests of tenants, and so they could not agree to terminate an existing assured tenancy and immediately enter into a short assured tenancy of the same property.

The First-tier Tribunal did not accept the appellant’s proposition that the 2006 lease was invalid and concluded that a reasonable person on an objective view would conclude that the written agreement was a short assured tenancy. It noted he had previously been told by Mr Wright that he intended to reside in the property and been given a lengthy period of notice, and thus it was reasonable to evict him.

It was submitted by the appellant that a legal consequence of the termination of the assured tenancy by renunciation was, because of section 16(1) of the 1988 Act, the automatic creation of a statutory assured tenancy with the same terms and conditions as before. He remained in possession of the property. Therefore, his statutory assured tenancy could only be terminated by an order from the FTS under section 16(2), and not by the creation of a new short assured tenancy over the property.

Did not challenge

In his decision, Sheriff Collins said of the appellant’s principal argument: “Section 16(1) provides that a statutory assured tenancy only comes into being if the tenant remains in possession ‘without being entitled to do so under a contractual tenancy’. But a contractual tenancy can in principle be a new tenancy. By contrast with the earlier reference to a contractual tenancy in the subsection, there is no requirement that it be an assured tenancy rather than, for example, a short assured tenancy.”

He continued: “Even if a statutory assured tenancy did come into existence on the appellant renouncing his contractual assured tenancy, section 16(2) merely precludes the bringing of the statutory assured tenancy to an end ‘by the landlord’, other than by obtaining an order from the FTS. It therefore does not preclude parties from agreeing to bring such a tenancy to an end, nor agreeing to then enter into a new short assured tenancy. It merely protects the tenant from the landlord imposing such a tenancy on them if they do not agree to it.”

Analysing the manner in which the new lease was created, the sheriff said: “In a case where, as here, there was initially no written lease, and the landlord subsequently persuaded the tenant to sign a lease, that document could not change the terms of the tenancy. But, it was submitted, that was what had happened in the present case, in particular because the AT5 was a crucial part of the short assured tenancy and was not part of the previous, unwritten agreement.”

He went on to say: “The appellant could, when presented with the new tenancy document in October 2006, have refused to sign it, and then challenged it by making an application to the court under section 30. But he did not do so.”

Sheriff Collins concluded: “In the present case the assured tenancy which began in 1993 could never had been a short assured tenancy, because no AT5 was served prior to its creation. But as the FTS found, the appellant renounced that tenancy. An AT5 was served ‘before the creation of the assured tenancy’ which began in October 2006, because it was served in September 2006. Because the AT5 was so served, and this new tenancy had the other prescribed features and formalities set out in section 32, it was therefore also a short assured tenancy.”

The appeal was therefore refused.