It has been a prolonged period of uncertainty for landlords in Scotland.
First came the pandemic in 2020 which resulted in emergency legislation being passed by way of the Coronavirus (Scotland) Act 2020. This made all grounds for eviction discretionary rather than mandatory and extended the notice periods temporarily to be given to tenants to terminate a lease.
Almost, as soon as we had taken tentative steps out from the pandemic, further temporary emergency legislation in response to the cost of living crisis introduced further obstacles for landlords and put in place a moratorium on evictions (except for very limited situations) which was only just lifted earlier this year after being in place for some 18 months.
However, landlords must still approach terminating leases with trepidation.
The Upper Tribunal recently allowed an appeal by a tenant who had raised an action for a wrongful termination order under section 58 of the Private Housing (Tenancies) (Scotland) Act 2016.
Where a Private Residential Tenancy (hereinafter referred to as a ‘PRT’) has been brought to an end by either the tenant ceasing to occupy the property on the back of a notice to leave or by the issuing of an eviction order from the First Tier Tribunal (Housing and Property Chamber) (‘the Tribunal’) and the tenant is able to prove to the Tribunal that the landlord deliberately misled either the tenant into leaving the property or the Tribunal into granting the eviction order, then the Tribunal has the power to grant a wrongful termination order against the landlord and a tenant can be entitled to compensation.
In this specific case, the tenant raised such an action after she had been issued a notice to leave based on the ground that the landlord wished to sell the property. On receipt of the notice to leave, the tenant vacated.
The landlords did place the property on the market for sale but later withdrew it and instead placed the property back on the rental market and let it out to a new tenant.
The Tribunal found that the tenant had not been misled into occupying the property and the application for a wrongful termination order was rejected.
However, the tenant sought permission to appeal this, and the Upper Tribunal found that the Tribunal had erred in law and its decision must be set aside.
Reference is also made to the decision by the Tribunal in Rodriguez-Ortega v Dominguez-Lopez (FTS/HPC/PR/20/151). The landlord in this case (Mr Dominguez-Lopez) obtained an order for eviction against the tenant (Rodriguez-Ortega) in July 2019. The order was granted on the landlord’s representations to the Tribunal that he intended to renovate the property and then move himself and his family in.
The Tribunal found the landlord had been dishonest in his prior representations, that the tenancy had been wrongfully terminated and that the tenant was entitled to an award of payment.
There was also a discussion in Rodriguez-Ortega about landlords being permitted to change their intentions after they recover possession and that to be able to persuade the Tribunal of this, the landlord must make sure they have credible evidence to back up any change of intention.
It is noted in the decision of the Tribunal in this case that they were not satisfied by the evidence of the Respondents in relation to their change of intentions.
These decisions provide clarification that the exercise of discretion by the Tribunal is broad and must take into account all relevant and available facts, and is not limited to the facts specified in the ground for eviction.
It is vitally important that landlords are aware of these potential risks and advice and assistance should be sought when seeking to evict tenants from a property.
