Tollcross Housing Association loses appeal against tenancy assignation order

A housing association that refused to consent to the assignation of a social rented sector tenancy has failed in its appeal against the grant of decree ordering it to allow the tenant to assign the tenancy. 

Tollcross Housing Association Ltd, the defender in the action originally brought by its tenant Keith Docherty, argued that the sheriff had erred in his approach to evaluating the factors the landlord had taken into account in refusing consent. 

The appeal was heard in the Sheriff Appeal Court (Civil Division) by Sheriff Principal Turnbull

Under-occupied under policy 

The tenant began residing in the let property in Glasgow in May 2008 alongside his wife and two children. In early August 2019, the wife left the property while the tenant and his children remained there. Later that same month the tenant applied to the landlord to assign the tenancy to his daughter in accordance with the relevant provisions of the Housing (Scotland) Act 2001

Consent was refused by the landlord in September 2019 on the grounds that granting an assignation would result in the property being under-occupied under its allocations policy. In the same month, a friend of the tenant’s daughter moved into the third bedroom of the property. An attempt to change the rent arrangements made by the tenant’s daughter on 30 August 2019 was refused by the landlord. 

The sheriff who heard the case at first instance found that, notwithstanding the reason given for refusal of consent already given by the landlord, there were other reasons which informed its decision to refuse consent. However, he also found that the landlord had failed to make inquiries into what would happen in the event that assignation was consented to as well as failing to have regard to six other relevant factors. 

On appeal, it was submitted for the landlord that the sheriff had erred in holding that it had taken irrelevant factors into account in its decision and that it failed to have regard to relevant factors. Further, the sheriff erred in holding that the landlord failed to communicate given matters to the tenant in the course of making its decision. 

Entitled to make findings 

In his opinion, Sheriff Principal Turnbull first considered the role of the court in this dispute, saying: “The court’s function, at first instance, is to assess the reasonableness of the landlord’s refusal. It is not to consider matters de novo as at the date of the hearing before the sheriff (which in this case was some four months after the landlord’s refusal). That is the clear and unambiguous purpose of the relevant provisions.” 

On the sheriff’s approach at first instance, he said: “The sheriff concluded that the function of the court was to consider the question of reasonableness de novo, which in turn required a consideration of the question of reasonableness as at the date of the hearing before him. Leaving that error to one side, a consideration of the sheriff’s decision leaves the impression that, to a significant extent, the sheriff performed the role incumbent upon him in terms of the relevant provisions of the 2001 Act.” 

Sheriff Principal Turnbull then turned to the issue of under-occupation, saying: “Notwithstanding the absence of an express ground to that effect as at the date of consideration by the landlord, the issue of under-occupation was one which the landlord was entitled to have regard to when considering the tenant’s application to assign. In the event, the landlord’s only stated ground of refusal of the application was that granting it would have resulted in the property being under-occupied as defined within the landlord’s allocations policy.” 

He continued: “The evidence before the sheriff entitled him to make the findings in fact he did regarding under-occupation. At or about the time of the landlord’s refusal, the property was not under-occupied. The sheriff did not err in this regard.” 

Leaving aside error 

Examining the conclusions reached by the sheriff, he said: “The sheriff carefully considered the evidence before him. Leaving the error of approach this court has identified to one side, the sheriff’s analysis of the evidence and the conclusions he reached upon it are matters upon which no basis has been advanced by the landlord to permit this court to interfere with the conclusion the sheriff reached.” 

He continued: “The basis upon which consent was withheld by the landlord was not supported by the evidence. The sheriff identified that there were other reasons which informed the landlord’s refusal of the tenant’s application to assign the tenancy; and that the landlord had failed to have regard to factors which were prima facie relevant. The court can find no basis upon which it ought to interfere in the conclusions reached by the sheriff.” 

Sheriff Principal Turnbull concluded: “The sheriff’s assessment was carried out by reference to the landlord’s decision of 4 September 2019. Indeed, in many ways, it appears as if the sheriff carried out precisely the exercise required of him in terms of the statute, reaching a decision which was open to him on the evidence. The court has concluded that notwithstanding the error of approach by the sheriff, the conclusion reached by him was the correct one.” 

For these reasons, the appeal was refused. 

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