Govan Law Centre’s Women’s Rights Project has successfully defended a mother and her family against eviction in a private sector let in Glasgow.
The landlord sought an eviction order under ground 13 of Schedule 5 of the Housing (Scotland) Act 1988. The landlord founded upon alleged breaches of the tenancy agreement – largely low level allegations of poor housekeeping – which were found not to be proven.
Significantly, the First-tier Tribunal (FtT) found that the clause in the lease to evict on causing a nuisance to the landlord was unenforceable in law standing the Consumer Rights Act 2015. The FtT held:
“[35] Having made the above findings in fact, the Tribunal proceeded to determine whether the ground relied on in Form AT6 was established. Having done so, the Tribunal considered that they have not albeit the Tribunal considered that Condition 8(n) of the agreement required to be considered separately: “not to do anything that may be deemed a nuisance to the Landlord or adjoining proprietor’s under declaration that what amounts to a nuisance for the purpose of this clause shall be determined at the Landlord’s sole discretion”.
[36] At submissions stage, Ms Berry submitted that even if this condition had been breached, the Condition ought to be construed as being unenforceable under the Consumer Rights Act 2015. The Tribunal noted the decision of Appeal Sheriff O’Carroll in the case of Mr Mark Horne and RM Robert Horne and Slash Property Ltd 2024 UT36 UTS Ref: UTS/AP/24/0020. A tenancy contract such as this was construed by the Upper Tribunal as being within the ambit of the Act. The Tribunal was therefore obliged to proceed on that basis”.“The decision also provides guidance on the approach the Tribunal ought to take in determining whether any contractual term was unfair. The Tribunal accepted Ms Berry’s submission as being well founded. Condition 8 (n)was manifestly unfair as a contract term as it sought to provide that the landlord was to be the sole arbiter of what amounted to a nuisance- and effectively therefore the sole arbiter of whether a tenant had breached the tenancy. This created an unacceptable imbalance of power against which the Respondent would have no right of redress. The Tribunal therefore considered this condition to be unenforceable in terms of Section 62 of the said Act. The Respondent therefore could not be held to be in breach of it”.
The tenant was represented by Govan Law Centre’s Sophie Berry, Solicitor.
