Upper Tribunal refuses landlord appeal against RSEO requiring him to address damp problem

About this case:

• Citation:
  2022UT21
• Judgment:
  External link
• Court:
  Upper Tribunal for Scotland
• Judge:
  Sheriff Iain Fleming

Mohammed Arshad, the appellant, argued that it was not possible to carry out the necessary repairs while the respondents, Atif and Samina Khawaja, were still living in the property. The respondents argued that no error of law had been identified by the appellant and alternative remedies were available were he required to remove them.

The appeal was heard by Sheriff Iain Fleming. The appellant was represented by Mr Mo Bukhari of AQA Property Ltd, which managed the tenancy on behalf of the appellant, and the respondents by Mike Dailly, solicitor-advocate.

Major work needed 

The parties entered into a short assured tenancy under the Housing (Scotland) Act 1988 of a ground-floor flat on Garturk Street, Glasgow, in August 2016. By application received by the First-tier Tribunal on 5 July 2019, the first respondent sought a determination the landlord had failed to comply with his duties under section 14(1) of the Housing (Scotland) Act 2006. In particular, he complained that there was dampness and black mould in all three of the property’s bedrooms and water damage in the kitchen.

Following an inspection by the Tribunal in September 2019 and a hearing at which the appellant was not present, it was determined that the property did not meet the repairing standard. Due to uncertainty about the underlying cause of the damp, the terms of the RSEO required the landlord to instruct a suitably qualified specialist to repair or replace the defective damp-proof course to the rear of the building, as well as deliver to the Tribunal a report from a suitably qualified building surveyor addressing the requirements to make the property wind and water tight.

It was accepted by the appellant that major work needed to be done to the property, however he maintained that this could not be done while the tenants were in the property as the work required the use of dangerous chemicals and would be likely to endanger any person within the property. It was submitted on his behalf that it would be unfair for the RSEO to remain in place, given that the tenant had over the past two years rejected offers of alternative properties within the building while the work was ongoing.

For the respondents it was submitted that if it were the case that the appellant could not agree with the respondents that he would meet their costs for temporary accommodation or provide it to them it had been open to him, within the last two years, to have raised proceedings before the FtT for compulsory removal to carry out substantial works. It was also emphasised that the landlord had failed to obtemper the RSEO since October 2019.

Error favoured the appellant 

In his decision, Sheriff Fleming observed: “Although it is the case that permission to appeal has been granted in relation to two points of law, the submissions which were made by the appellant were confined to restating the factual position that was before the FtT; namely that the landlord could not carry out damp proofing treatment while the tenant was still living within the property and secondly that the damp proofing works cannot be carried out for health and safety reasons.”

He continued: “It is clear from the decision of the FtT that it concluded that the appellant had not clearly demonstrated that he had taken reasonable steps for the purposes of acquiring rights of access and later that the FtT was not persuaded that ‘serious efforts’ towards the provision of alternative accommodation for the respondent while the necessary repairs are being carried out had been made. In terms of paragraph 54 of the FtT decision the FtT comments that no written evidence of any offers of accommodation to the tenant or any other assistance to the tenant had been provided to the FtT.”

Addressing the test applied by the FtT to the landlord’s efforts to secure alternative accommodation, he said: “In terms of section 26(3) of the 1988 Act the FtT requires to be satisfied on the submission of the landlord or otherwise that the landlord is unable to comply with the RSEO despite having taken reasonable steps for the purposes of acquiring rights of access. Reasonable steps means that the landlord must reach agreement with the tenant or utilise the statutory provisions of the 1988 Act, with all of the safeguards provided therein. There is no basis for consideration of a test of ‘serious efforts.’ Such an error, however, favoured the appellant.”

He concluded: “Permission to appeal was also granted in relation to the issue as whether the work required by the order was likely to endanger any person within the property. The same considerations apply. It is for the appellant to reach agreement with the respondent or to raise proceedings before the FtT for eviction to allow the works to be carried out. The statutory provision allows protection to those in the respondents’ position inasmuch as the criteria for alternative accommodation are specified. In the absence of agreement or the use of the statutory provisions the appellant is not in a position to found on this provision.”

The appeal was therefore refused. A further application for permission to appeal the decision of the Upper Tribunal to the Court of Session was also refused.