Tue 11 Jun 2019

Evicting tenants of irregular tenancies - where do you sue?

The sheriff court was the traditional forum in which a landlord could obtain an order which enabled them to evict a tenant. 

Changes were made to this on 1 December 2017 when jurisdiction to grant orders for eviction or possession in relation to certain types of residential tenancies was given to the Housing and Property Chamber of the First-tier Tribunal. However, recent notes published in the sheriff court case of Reid v Redfern make it clear that the First-tier Tribunal does not have jurisdiction to grant orders in all cases where a landlord wants to remove a residential occupier.

The pursuers in Reid v Redfern were a father and son who were the tenants of a farm. The defender was a former partner of an individual related to the pursuers. The defender had been residing in the farmhouse with her former partner and children and had remained there after he left the farmhouse. The pursuers raised a court action to recover possession of the farmhouse from the defender and her children. The action was challenged on the basis that it should have been raised in the First-tier Tribunal.

The irregular type of occupation did not meet the requirements for it to be one of the statutory types of tenancy over which the First-tier Tribunal had been given jurisdiction. The question before the court was whether a change to section 23 of the Rent (Scotland) Act 1984 had given jurisdiction to the First-tier Tribunal.

Section 23 contains a requirement for an owner of premises to seek an order before they can recover possession of premises in circumstances where the premises are occupied as a dwelling by an individual who previously had a right to occupy the premises and has remained in occupation after the right came to an end. It was provided that the order must be sought by proceedings in the court but a change proposed, in a paragraph in a schedule to the Housing (Scotland) Act 2014 (the 2014 Act), sought to substitute the reference to the court with a reference to the First-tier Tribunal. However, when court investigated the matter in Reid v Redfern it became clear that the commencement order which brought the relevant paragraph of the 2014 Act into force had introduced the change in a limited way which covered only certain types of tenancy agreement. Accordingly jurisdiction remained with the sheriff court.

This decision makes clear that there are still a number of types of irregular tenancies where an action to obtain an order allowing the recovery of the property will still need to be raised in the sheriff court.

Make an Enquiry

From our offices we serve the whole of Scotland, as well as clients around the world with interests in Scotland. Please complete the form below, and a member of our team will be in touch shortly.

Morton Fraser MacRoberts LLP will use the information you provide to contact you about your inquiry. The information is confidential. For more information on our privacy practices please see our Privacy Notice