Upper Tribunal quashes decision to refuse landlord possession order to allow him to substantially remodel property

About this case:

• Citation:
  2023UT20
• Judgment:
  External link
• Court:
  Upper Tribunal for Scotland
• Judge:
  Sheriff George Jamieson

David Stainthorpe sought to recover possession of a Dumfries property he owned from tenants Marion Carruthers and Raymond Swan, who resisted the application, in order to remodel the kitchen and bathroom and carry out other works. He argued that the FTS had wrongly found that he did not truly intend to go ahead with the works, or that he was only doing so to later transfer the property to his stepson.

The appeal was heard by Sheriff George Jamieson. Dalgleish, solicitor, appeared for the appellant and Bryce, solicitor, for the respondents.

Without supporting evidence

The appellant had sought the order for possession in terms of ground 6 of schedule 5 to the Housing (Scotland) Act 1988, i.e., that he intended to demolish or reconstruct the whole or a substantial part of the let property. He planned to reconstruct the whole of the kitchen and the bathroom, remove asbestos tiles, and install underfloor heating. This would require rewiring all the rooms of the property and giving it a new water supply, and result in a redesign of other parts of the house.

It was the appellant’s position before the FTS was that it would not be feasible for the respondents to remain in the property while these works were being carried out, in particular due to the property not having a heating system while works were ongoing. However, the Tribunal concluded that there were substantial doubts over the appellant’s intention to carry out the works.

On appeal it was submitted that the FTS erroneously found in fact that the appellant’s stepson had obtained a mortgage offer to fund the works subject to his obtaining vacant possession. This had materially affected the Tribunal’s thinking concerning his intention to demolish the property. Further, the FTS had stated without supporting evidence that the appellant would have no intention of carrying out the works if the respondents could remain as tenants.

Other grounds of appeal included that the Tribunal had erred in concluding that the respondents would be rendered homeless by granting an order for possession, and by taking into consideration the appellant’s failure to demonstrate what practical measures he might have taken to allow the works to be carried out while the respondents remained in occupation of the property.

Manifestly irrelevant consideration

In his decision, Sheriff Jamieson said of the first appeal ground: “The FTS did not clearly establish the full facts about the mortgage application; about how the works were to be funded; and by whom: it proceeded on the basis of a conclusion or inference from what ‘appeared’ to be the situation to the FTS.”

He continued: “The FTS did not discuss the whole evidence in the round in reaching its conclusion on the Appellant’s intention to carry out the works. In these circumstances, I consider the FTS wrongly approached the exercise of making its findings in fact in relation to the essential question of the Appellant’s intention to carry out the works himself. This error vitiates its decision.”

Turning to the second ground of appeal, the sheriff said: “The appellant concedes that he gave evidence that he would not carry out the works if the respondents remained as tenants. This makes sense and is not suspect because the appellant is entitled to use his property as he sees fit subject to any legal restriction on that use. It is understandable he would prefer to benefit his family rather than his tenants by carrying out the works. However, in my opinion, the FTS still erred in law on this point.”

He explained further: “The issue for its consideration was whether the intended works could not reasonably be carried without the respondents giving up possession of the house. The appellant could therefore legitimately intend to carry out the works with vacant possession; but not without such possession. The FTS’s decision was thus materially influenced by taking into account a manifestly irrelevant consideration.”

Sheriff Jamieson concluded: “In my opinion, the FTS erred in law in three respects: first, it erred in applying the law by imposing an obligation on the Appellant to consider how the works might be carried out without the Respondents giving up vacant possession when no such obligation appears in condition 6(b) of schedule 5 to the 1988 Act; secondly, by reaching a conclusion not warranted by the evidence; and, thirdly, by arriving at a decision no reasonable tribunal could properly reach.”

The decision of the FtT was therefore quashed. The sheriff reserved consideration of whether the UT should remake the decision or remit the case for reconsideration by the FtT.