It was argued by the appellants, Amer and Nosheen Rafique, that the relevant eviction ground under the Private Housing (Tenancies) (Scotland) Act 2016 could be used where the tenant was in rent arrears for three or more months by the time the application reached the Tribunal. The respondent, Ryan Morgan, opposed the application on the ground that the FtT had made the correct decision.

The appeal was heard by Sheriff Tony Kelly. The appellants were represented by Mr Taylor, solicitor, while the respondent appeared in person.

Three full months

The parties entered into a private residential tenancy on 28 September 2020 at a rent of £750 per month. The appellants submitted to the FtT that only the first month’s rent had been paid and that they had served a Notice to Leave on the tenant dated 30 December 2020 on the ground of rent arrears, which stated that an application would not be submitted to the Tribunal for an eviction order before 6 July 2021.

Upon receipt of the application, the FtT informed the appellants’ agents that it was unlikely to succeed as at the time that the tenant was given notice, he was not in three full months of arrears, advising them to consult the decision of the Upper Tribunal in Majid v Gaffney (2019) on the point. At a case management discussion, the appellants argued that Majid had been wrongly decided by the UT, a submission which was rejected by the FtT.

It was submitted for the appellants that the provisions of the 2016 Act did not support the UT’s finding that the eviction ground relied on had to apply at the time of the service of notice. The time for ascertaining when the ground applied was, per Schedule 3 of the Act, the day on which the Tribunal first considered the application for an eviction order on its merits.

The appellants further argued that section 62(1)(c) of the Act created an ambiguity in that it was not made clear on the face of the provision whether the eviction ground to be relied upon before the FtT had to exist at the time of the service of the notice to leave. They sought to rely on statements made by the Scottish Minister for Housing and Welfare during the Stage 2 proceedings of the Private Housing Bill in support of their construction of the Act.

Although he was present at the appeal, no substantive submissions were made by the respondent.

Consistency in the scheme

In his decision, Sheriff Kelly observed: “The landlord was speculating not only that the state of affairs would remain (arrears of rent) but that they would deteriorate to such an extent that the circumstances in ground 12 would come to pass. That is, at some point in time (unspecified), the arrears would accrue over three consecutive months and thus application could be made to the FtT for an eviction order.”

He continued: “It makes sense for the clock on the computation of that period to start running from when the tenant is told that he must leave and for that notice to contain information that at that point in time forms a sufficient basis in fact to amount to an eviction ground. The purpose of these requirements is difficult to make sense of if all that the landlord requires to intimate to the tenant when serving a notice to leave is that an application based upon a specified eviction ground may, at some unspecified point in the future, be made to the FtT.”

On whether there was an ambiguity in the 2016 Act, the sheriff said: “There appears to be a consistency in the statutory scheme. Rather than view any perceived conflict between the regulations providing for the terms of the forms to be used in a notice to be served on a tenant and the primary legislation as some deficiency of drafting I prefer to view them as parts of a complete whole.”

He concluded: “It would not be correct to put on an equal footing the words used by the legislature in the 2016 Act and the content of the parliamentary debates which featured prospectively those provisions. I consider Mr Taylor was in error in rendering as synonymous with the intention of parliament what the Minister said in the course of the parliamentary committee’s deliberations on the Bill.”

In a postscript addressing the UT’s decision in Majid, Sheriff Kelly added: “I had deliberately refrained from reading the UT decision of Majid v Gaffney until the close of submissions in this case. On reading it I agree with it. I do not detect any conflict with my reasons and those of Sheriff Fleming in that case.”

The appeal was therefore refused.