Teething Troubles for New Residential Tenancy System

Author: Mitchells Roberton
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The Private Housing (Tenancies) (Scotland) Act 2016 came into force almost two years ago, with the First-tier Tribunal for Scotland  (Housing and Property Chamber) taking on the Sheriff Court’s  jurisdiction over cases relating to most types of private residential tenancies in Scotland, including the new Scottish Private Residential Tenancy (SPRT) which was introduced in late 2017.

Of course with a new tenancy regime now in place and an entirely new Tribunal finding its way, there are going to be some matters needing clarification.

  1. The Tribunal does not have the jurisdiction to hear all cases regarding tenancies but can only hear cases “arising from” a residential tenancy, which is a somewhat wide definition. Cases have tested this definition including Parker v Inkersall Investments Ltd. Here the Sheriff Court dismissed the case, as the applicant had failed to recognise that their tenancy over a farmhouse was in fact a residential tenancy and could only be dealt with by the Tribunal. In another case Anderson v First-tier Tribunal for Scotland Housing and Property Chamber the applicant argued that the case related to a residential tenancy and should be heard by the Tribunal. The Tribunal disagreed, and the applicant appealed the decision, which was upheld. Applicants and the courts both face issues in deciding how related the case is to a residential tenancy and therefore deciding which forum to raise the action in.
  2. In every application for eviction the landlord must prove that the relevant Notice to Leave has been correctly served, received and that the notice period is correct. There is some debate regarding the notice period. Many solicitors advise their clients to include extra “clear” days to avoid the notice period from being rendered too short, but it seems from the legislation on SPRTs the landlord must give the exact amount of days in the Notice. If extra time is included the Notice will be invalid. This is an obscure pitfall and care must be taken to avoid it. This is at odds with the Scottish Government’s own guidance but in Lewis Flannigan v Mill the Tribunal spells out that the Notice can only be valid if the exact date is stated on the Notice.
  3. There are also some difficulties regarding HMOs. In a recent case Affkeck v Bronsdon a tenant had entered into a tenancy of a flat where three other tenants were already living. The incoming tenant had her own room and use of a shared kitchen and living space. She made an application against her landlord for a remedy on the basis that she had a SPRT. It was determined that because the tenancy was over only part of the flat in shared occupation, in terms of the legislation such a lease is exempt from being a SPRT.

This shows that although the Tribunal’s procedures are designed to be used by landlords and tenants on their own without  the necessity of involving a solicitor, in actual fact although it might appear to the applicant that they will save money, when issues  about facts, law or procedure arise an applicant might find themselves in troubled waters. Therefore thought should be given to seeking the help of a solicitor from the start.  If I can help please contact me, Alison Gourley on 0141 552 3422 or by email ajg@mitchells-roberton.co.uk

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