The Upper Tribunal for Scotland (UTS) has refused a landlord’s application for permission to appeal a decision of the First-tier Tribunal for Scotland (FTS) not to grant an eviction order on grounds of several alleged breaches of the tenancy agreement.
Sophie Berry, Solicitor at Govan Law Centre’s Women’s Rights Project, represented the tenant at a two-day evidential hearing before the FTS and had submitted that Condition 8(n) of the parties’ tenancy agreement ought to be construed as being unenforceable under the Consumer Rights Act 2015.
Condition 8(n) required the tenant “not to do anything that may be deemed a nuisance to the Landlord or adjoining proprietors under declaration that what amounts to a nuisance for the purpose of this clause shall be determined at the Landlord’s sole discretion.”
The FTS had found that Condition 8(n) was manifestly unfair as a contract term and therefore unenforceable in terms of Section 62 of the 2015 Act. Before the UTS, the appellant sought to argue that the 2015 Act could not be applied since he was a practising solicitor and not acting in the course of business as landlord of the property.
On this point, the UTS remarked that, although the case did not turn on whether or not the 2015 Act applied, “In any event, it is difficult to see how making a finding that the appellant was acting in the course of a business could be an error in law on the part of the FTS. On the facts such a conclusion appears irresistible.”
The appellant had purchased the property with a sitting tenant, and with no intention of residing in the property. The fact that he was a practising solicitor at the time of purchase was not determinative. In conclusion, Sheriff McCartney noted that taken as a whole, the appellant’s proposed grounds of appeal did no more than say that he disagreed with the FTS.
The FTS had found the tenant’s evidence to be reliable and credible, and by contrast had found the landlord’s evidence unreliable, noting the landlord had ‘lost his perspective’ and that much of his evidence was based on ‘supposition and innuendo’. The FTS was entitled to reach that conclusion and had given reasons for doing so. Leave to appeal was accordingly refused.
