28 March 2023

LSA successfully prevents eviction of family using reasonableness defence

On 10th February 2023, we succeeded in preventing the eviction of a family of five from their home in Glasgow. The evidentiary hearing before the First-Tier Tribunal for Scotland considered the reasonableness of an eviction order as sought by the landlord.

The tenants had a Short Assured Tenancy over the property. The landlord served a valid notice to quit and section 33 notice to the tenants as per the requirements under the Housing (Scotland) Act 1988. Prior to the COVID-19 pandemic, there was no reasonableness defence to the action in cases such as these. The Tribunal would therefore have no discretion in considering the application and would be obliged to grant an order for possession. Under the present legislation (as amended by the Coronavirus (Recovery and Reform) (Scotland) Act 2022), the Tribunal must consider it reasonable to evict before granting such an order. The applicant in this case argued that the respondents’ treatment of the property would render an eviction order reasonable.

The main contention of the landlord was that a collapse in the kitchen ceiling was attributable to the family‚Äôs use of the bathroom directly above. There were other minor issues that had cropped up in the seven years in which the family had resided within the property. These were dismissed by the Tribunal as matters which were ‚Äúto be expected in a Property let to a family over a period of time‚ÄĚ. At the hearing, we managed to demonstrate that the damage to the kitchen ceiling was not exclusively caused by the conduct of the respondents. We pointed to the lack of expert evidence on the part of the applicant as to the cause of the ceiling damage. We also led video, photographic and oral evidence on the condition of a corroded pipe behind the sink. Ultimately, the Tribunal agreed with our position that the damage to the kitchen ceiling was not caused exclusively by the family‚Äôs use of the property.

It is important to note that the damage to the property was not a ground for eviction. The landlord was instead citing the damage as the reason that granting a possession order would be reasonable. This is a fairly subtle distinction but in practice is of consequence. It is feasible that, even if we conclusively proved the damage was not the fault of the respondents, a Tribunal could consider it reasonable to evict. For that reason, it was important that we demonstrated that the landlord had no other reason to require possession of the property. In cross-examination, the landlord made clear that her problem was with our clients personally. She stated that she was not sure what she would do with the property if she regained possession of it and may even consider re-letting the property to another family.

We then led evidence on the respondents’ circumstances, including their significant health problems, the lack of alternative accommodation and the detrimental effect an order for possession would have on the education of their children. In balancing the needs and circumstances of our clients against the desire of the landlord to regain  possession of the property, the Tribunal considered it would not be reasonable to evict. The application was therefore refused.

This was an important outcome for our clients who will not be uprooted from the home and community to which they have become so attached. It is also an interesting example of the balancing act that the Tribunal must do when considering the reasonableness of an eviction. In light of the fact that this was previously a mandatory ground for eviction, this case highlights the positive impact that pro-tenant amendments to legislation can have on the lives of families across Scotland and the significance of LSA’s work as we strive to address unmet legal need.

Thank you to our solicitors Derek Mahood and Rachel Scott in our Housing Department for all of their hard work.

See the decision in full here: Written Decision (with Statement of Reasons) 22.2661_Redacted.pdf (housingandpropertychamber.scot)