Craig McCann | Trainee Solicitor

Tribunal rules pro indiviso tenancy cannot qualify as a Private Tenancy Agreement

In the case of Affleck v Bronsdon [2019] UT 29, the Upper Tribunal for Scotland ruled that a tenant was a pro indiviso tenant and consequently did not have a private residential tenancy.

Pro indiviso is a concept in Scots law that describes common or undivided property ownership. Each owner, known as a pro indiviso owner, possesses a share of the whole of the property.

In this case, Ms Affleck, moved into a flat in Edinburgh on 1 January 2018. She was one of four tenants in the property. Ms Affleck was provided with a registration form from the landlord stating that the  rent was £350 per month.  No tenancy agreement was ever provided to Ms Affleck.  She only had exclusive possession of the room she was sleeping in with all other parts of the flat, except the rooms of the other tenants, being communal. In August 2018 Ms Affleck was provided with a tenancy agreement to  sign. At this stage it became apparent the parties had quite different ideas of what arrangements existed. The landlord went on to provide five separate draft tenancy agreements but Ms Affleck refused to sign them. Instead Ms Affleck went  to the First-tier Tribunal for Scotland Housing and Property Chamber to seek remedies under the Private Housing (Tenancies) (Scotland) Act 2016 in respect of her tenancy.  The First-tier Tribunal found that there was no Private Residency Tenancy (PRT) between the parties.

On Appeal, despite concluding that there was a lease, Sheriff Ross agreed with the First-tier Tribunal  that there was no PRT. This was on the basis that Ms Affleck was a pro indiviso tenant. Under the 2016 Act, the tenant must occupy the property as a separate dwelling for there to be a PRT. Sheriff Ross said: “It is clear, from the judgment as a whole, that she does not occupy the property as a separate dwelling. She is one of four residents, and is entitled to exclusive occupation only of her own bedroom. She has to share all other facilities. Other tenants can come and go. She does not occupy a separate dwelling. She occupies part of a communal dwelling. For that reason, the arrangement does not qualify as a PRT under the 2016 Act.”

Craig McCann

Craig McCann

Dispute Resolution Team

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