Alan Cameron | Partner

First unlawful eviction decision from First-tier Tribunal for Scotland

In a recent First-tier Tribunal for Scotland Housing and Property Chamber decision the tribunal awarded £18,000 in damages to a tenant who was unlawfully evicted from his Glasgow flat in 2015. The decision is the first of its kind to come out of the tribunal and will likely pave the way for other unlawful eviction claims.

The tenantraised the action in September 2018 against his landlords based on the conduct of their representative in removing him from accommodation that he occupied under an assured tenancy. He was seeking damages of £18,000 under Sections 36 and 37 of the Housing (Scotland) Act 1988.

Summary of Events

The tenant began occupying the let property in December 2013 under an assured tenancy under the 1988 Act (as previously found by the Tribunal). The tenant entered into this agreement with the landlord’s representative.

In early December 2015, the landlord’s representative and another person entered the property to change the locks and remove the tenant’s personal belongings while the tenant was away from the property. At the time, the tenant was in rent arrears but no formal steps had been taken by either party to terminate the tenancy.

The landlord’s claimed that a verbal agreement had been made between the tenant and the landlord’s representative that the property would be vacated around the end of November 2015. It was accepted in an earlier hearing that the landlord’s representative had taken possession of the property without a court order however his defence was that he believed or had reasonable cause to believe that the tenant had ceased to occupy the let property.

At the hearing, the landlord’s representative and the owner suggested that they based their decision that the tenant was no longer living in the property on the appearance of the interior, which they appraised as looking abandoned with nothing of value remaining, and continued with the eviction even after the applicant returned to the property and stated he was still living there. No action was taken to recover the key to the property from the tenant prior to the locks being changed.

Tribunal’s Opinion

The Tribunal rejected the defence of the respondents having reasonable cause to believe the tenant had vacated the property on the basis the Landlord’s representative and owner accepted that they had gone to the flat and filled a number of cardboard boxes with the applicant’s belongings. The Tribunal was of the opinion that on any reasonable view, “the sheer volume of the applicant’s belongings at the tenancy were not such as to indicate that he had ceased occupation”.

Regarding the tenant’s assertion that he was still living in the flat, the Tribunal was of the opinion that on the basis of the exchange between the Tenant and Landlord’s representative when the tenant arrived at the property on the 4 December the Landlord’s representative appeared to accept the tenant was still living in the property but he was insisting the Tenant has previously made an agreement to leave and was holding him to it. The Tribunal held that is “quite different from a belief that the applicant had ceased to occupy the property, as at 4 December 2015.”

Regarding the respondents’ evidence that the tenant had previously agreed to leave, the Tribunal held: “That seemed inherently unlikely, given that he had nowhere else to go. Furthermore, “The Tribunal accepted the evidence of the Tenant that he had sought advice from the police as to whether he could be evicted without a court order; and thereafter, he told the Landlord’s representative that he would not leave without an order being obtained.” Based on this, the Tribunal held “Even if there had been some prior suggestion that he would leave, that conversation ought to have made it clear that the Tenant had not agreed to cease occupation.”

For these reasons, the Tribunal concluded that an unlawful eviction had taken place, and awarded statutory damages of £18,000 based on the surveyor’s reports.

Alan Cameron

Alan Cameron

Dispute Resolution Team

“My motto is: ‘First they ignore you, then they ridicule you, then they fight you, and then you win.’”

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