Evict with Care – Private Residential Tenancies
The case of Rafique v Morgan, decided in March this year by the Upper Tribunal for Scotland (“the Upper Tribunal”), reinforces the fact that care is needed when a landlord wants to get back a residential property which has been let privately. In Rafique v Morgan, Mr and Mrs Rafique were the tenants and Mr Morgan was the landlord.
Outline of general rules about evicting tenants from Private Residential Tenancies
- A private (as opposed to public sector) residential tenancy that starts on after 1 December 2017 will be a “Private Residential Tenancy” (“PRT”) under the Private Housing (Tenancies)(Scotland) Act 2016 (“the 2016 Act”).
- In terms of the 2016 Act there are three ways in which a PRT can be ended: (1) by the tenant giving notice and leaving the property, (2) by the landlord giving notice and the tenant leaving voluntarily, or (3) by the landlord who, after serving “notice to leave” and finding that the tenant has not left voluntarily, is awarded an eviction order from the First-tier Tribunal for Scotland Housing and Property Chamber.
- There are 18 “grounds” for eviction that a landlord can use and the notice to leave must state which particular ground applies.
- One of the grounds (ground 12) says: “It is an eviction ground that the tenant has been in rent arrears for three or more consecutive months…” That was the relevant ground in Rafique v Morgan.
The key facts in the case of Rafique v Morgan
- The parties made a PRT agreement starting on 28 September 2020 at a rent of £750 per month payable in advance. The first month’s rent was paid but it was said by the landlord that no further payments were made and a “notice to leave” dated 30 December 2020 was served on the tenants the following day.
- The “notice to leave” told the tenants that the landlord was seeking eviction under ground 12 of Schedule 3 to the 2016 Act and, as required, went on to state how the landlord considered that the ground had arisen as follows: “over 3 months rent arrears, ongoing lack of contact and no repayment plan set up.”
- The “notice to leave” also went on to say that an application to the First-tier Tribunal for an Eviction Order would not be made before 6 July 2021.
The issue in the case of Rafique v Morgan
- As quoted above, ground 12 requires that “the tenant has been in rent arrears for three or more consecutive months”.
- But, of course, in this case the tenants had paid their first month’s rent of £750 in advance on 28 September. So, as at 30 December, when the notice to leave was served on them, they were not in fact yet “in arrears for three or more consecutive” months. So, at first sight, the “notice to leave” was defective.
The landlord’s argument
- But the landlord came up with a lawyerly argument to try and show that as long as the tenants were in arrears when the application for eviction was considered by the First-tier Tribunal it did not matter if they had not been in arrears for “three or more consecutive months” when the notice to leave was served.
- That argument rested on a close reading of parts of the 2016 Act. In outline it was as follows.
- There was nothing in the 2016 Act which specifically said that the eviction ground had to exist at the time of the service of a notice to leave.
- Instead, the 2016 Act provided that the First-tier Tribunal must find that the rent arrears ground applies if on the day on which it first considers the application for an eviction order “the tenant has been in arrears of rent … for a continuous period, up to and including that day, of three or more consecutive months…”
- And the 2016 Act referred to a “notice to leave” as being a notice which “specifies the day on which the landlord … expects to become entitled to make an application for an eviction order … [and] states the eviction ground … on the basis of which the landlord proposes to seek an eviction order in the event that the tenant does not vacate the let property…”
The Upper Tribunal’s decision
But Sheriff Kelly sitting in the Upper Tribunal was unpersuaded by these arguments. He made various references to the ways in which legislation should be interpreted having regard to the “intention of Parliament” and carefully scrutinised various parts of the 2016 Act rejecting the landlord’s argument outlined above and concluding that the ground must apply in fact as at the date the “notice to leave” is served.
Conclusion
In our Bullet Point Update for November 2021 we considered another case which illustrated the care required when it comes to notices to leave and Rafique v Morgan confirms that one needs to tread warily.
Note: This material is for information purposes only and does not constitute any form of advice or recommendation by us. You should not rely upon it in making any decisions or taking or refraining from taking any action. If you would like us to advise you on any of the matters covered in this material, please contact Martin McLellan: email martin@mitchells-roberton.co.uk