Upper Tribunal refuses appeal permission for Edinburgh ‘holiday let’ landlord found in breach of repairing standard

About this case:

• Citation:
  2023UT16
• Judgment:
  External link
• Court:
  Upper Tribunal for Scotland
• Judge:
  Sheriff Frances McCartney

In an action raised by the City of Edinburgh Council, the First-tier Tribunal ruled that properties rented out by Edinburgh Holiday & Party Lets Ltd, whose sole director was Mark Fortune, were subject to and in breach of the repairing standard under the Housing (Scotland) Act 2006. The appellants challenged this finding on numerous grounds including erroneous treatment of witness statements and procedural errors.

The appeal was heard by Sheriff Frances McCartney of the Upper Tribunal. Mr Fortune represented the appellants at an oral hearing in March 2023.

Not fit for habitation

In 2019, the respondent applied to the Tribunal as a third-party applicant seeking a ruling regarding property standards at a flat on Gillespie Crescent, Edinburgh. They stated that they considered the property to be used for residential letting rather than holiday lets as the tenants were either working or studying and some had lived there for several months as their only home.

Following a lengthy period of correspondence between the Tribunal and Mr Fortune and multiple attempts to arrange a site visit which eventually happened in June 2022, the Tribunal held a substantive hearing in July 2022 at which it determined that the property was not fit for human habitation and ordered the appellants to comply with the terms of a Repairing Standard Enforcement Order.

During the course of proceedings, the Tribunal expressed concern as to the co-operation of the appellants. In particular, Mr Fortune and representatives of the appellants had claimed to have sought an interdict preventing the council from accessing the property. A review hearing held by telephone in March 2021 was unproductive after one person refused to identify themselves, and another person, who identified himself as a Mr Edwards, was abusive to members of the Tribunal.

For the appellants it was argued that the Tribunal had erred in accepting witness statements before it as they were unsigned, uncorroborated, and were hearsay evidence. It had also erred by treating Mr Fortune and his company as one and the same and had overstepped in assessment of the condition of the property.

Reality of the situation

In her decision, Sheriff McCartney said of the grounds of appeal: “Hearsay evidence is admissible before the tribunal. Corroboration is not required. Witness statements do not need to be signed. Mr Ross was present at the substantive hearing before the FTS to answer any questions on the statements. There is no error of law under this heading.”

Addressing the identity of the landlord, she said: “The fact that the leases were not in Mr Fortune’s name might suggest proceedings should not have been raised or involved Mr Fortune as an individual. But that would be to ignore the reality of the situation before the FTS. Mr Fortune made extensive submissions at the oral hearing in relation to the separate identities of himself and a limited company. The FTS were told at different points contradictory information on who the landlord was.”

She continued: “Against that background, it is perhaps not surprising that the FTS designated the appellants in the way that it did, should there be any further changes as to who the landlord is, given the property is owned personally by Mr Mark Fortune.”

On whether the Tribunal had correctly assessed the state of the property, the sheriff said: “The FTS undertook an inspection. That inspection was carried out by both of FTS members, and accordingly the FTS saw the condition of the property for itself. The FTS’s decision does not concern issues of decoration or cleanliness. It is clear the decision concerns whether the property is wind and water tight, whether there are certain safety certificates and fire detection and carbon monoxide detection systems.”

In a concluding note, Sheriff McCartney observed: “It is surprising that Mr Fortune was permitted to conduct himself the way he did before the FTS. I have already noted that a hearing was terminated because of his abusive behaviour to the FTS. It is surprising that hearing was rearranged. I also note it appears he made statements to the FTS which were not in fact true. In June 2022 he told the FTS that he was obtaining, and later had, an interdict preventing an inspection of the property being carried out. This does not appear to be correct. No interdict or interim interdict was produced to the FTS.”

Permission to appeal was therefore refused.