Upper Tribunal quashes eviction decision based on alleged anti-social conduct by tenant of farm cottage

About this case:

• Citation:
  2023UT10
• Judgment:
  External link
• Court:
  Upper Tribunal for Scotland
• Judge:
  Sheriff Pino di Emidio

Appellant Enzo Serapiglia, who had moved to the area in February 2020, argued that the FtT’s decision was not sufficiently supported by its findings in fact. The respondent, Cameron McIntyre, invited the Upper Tribunal to refuse the appeal on the ground that the FtT’s reasoning had been fully considered.

The appeal was heard by Sheriff Pino Di Emidio. Mr Kevin Montgomery of Renfrewshire CAB made submissions for the appellant and Mr Ben Brown, solicitor, made submissions for the respondent.

Finely balanced

The appellant had rented one of a number of farm cottages on Killbarchan Road in Bridge of Weir. The respondent’s case before the FtT was that there had been an incident in May 2021 in which the appellant had purposefully pulled his car out into the access road at the properties to block access by a Mr McLellan, who needed to use the road to drive to a shed from which he ran a small business.

Evidence was given by the respondent’s sister, who had been involved in the management of the tenancy, that the appellant’s body language and tone had been aggressive when he was asked to move his car and that she and Mr McLellan had felt threatened by his behaviour. The appellant had argued that his actions had been misconstrued and mischaracterised by Ms Young in her evidence and pointed to the fact that the matter was not reported to the police for some two months following the incident.

The FtT found that the appellant’s conduct had caused fear and alarm to persons closely connected with the property he rented and had caused the witnesses to change their business practices in order to avoid further incidents with the appellant. It stated that the matter was “finely balanced” but the fact that the respondent altered business practices as a result of the conduct tipped the scale in favour of granting the eviction order.

It was argued for the appellant that the FtT had failed to make adequate findings in fact to support its conclusion. Some of the evidence of Ms Young seemed to be based on a fear that he had criminal connections, which the FtT had not established a reasonable basis for. Further, the Tribunal had failed to engage with his evidence of mental trauma, which he had sought to alleviate by moving to what he thought would be a quiet location.

No real engagement

In his decision, Sheriff Di Emidio said of the FtT’s findings in fact: “The FtT did not set the scene. It is not clear whether any part of the behaviour complained of took place within the area occupied by the appellant exclusively under his tenancy, or wholly on ground occupied by other tenants or by the respondent landlord. A short set of findings as to the layout of the site, the areas occupied under the various leases, the area occupied by the landlord and the areas used in common by the landlord and his various tenants would have set in context findings relating to the incidents which formed the basis of the landlord’s complaint.”

He continued: “The FtT appears to have found that only some parts of the appellant’s behaviour founded on by the respondent were worthy of criticism. The FtT does not explain why some parts of the evidence of witnesses were accepted and others rejected. It has failed to state what any conclusions were reached based on an assessment of the reliability or the credibility of the witnesses’ evidence.”

Assessing the reasonableness of the order, the sheriff observed: “The FtT stated that its decision on the reasonableness issue was a ‘finely balanced’ one. It required to take account of all relevant considerations and properly to weigh and balance them. The FtT failed to state what it thought the relevant facts going to the question of reasonableness actually were in circumstances where the incidents relied on were multi- faceted.”

On the evidence of the appellant’s mental trauma, he added: “There was no real engagement with this part of the evidence in the findings made as to reasonableness. The appellant’s evidence about his health and past history of trauma was before the FtT and was the subject of an express finding, presumably because the FtT thought it was relevant. On the face of it, this matter was relevant to the assessment of the question of reasonableness but it does not seem to have been taken into account.”

Sheriff Di Emidio concluded: “In these circumstances, the FtT failed to set out the factual basis for its conclusion on both the first and second parts of the statutory test it required to apply in a Ground 14 case. As a result, the FtT has erred in law because it has misdirected itself and its decision will be quashed.”

The case was thereafter remitted for consideration by a differently constituted FtT.