Introduction
The case of Mackellar v Carlin presents a significant development in how the First-tier Tribunal for Scotland (Housing and Property Chamber) (FTS) should interpret the test of "reasonableness" when assessing eviction applications under Ground 12 of the Private Housing (Tenancies) (Scotland) Act 2016.
Ground 12(3)(a) allows for an order for eviction when the tenant is in rent arrears for three consecutive calendar months, provided that the FTS is satisfied that it is reasonable to issue an eviction order.
In March 2025, the Upper Tribunal for Scotland (UT) overturned a decision of the FTS, providing authoritative guidance on evidential requirements, judicial reasoning, and landlord-tenant fairness in eviction disputes arising from rent arrears.
This case is particularly relevant for landlords, lenders and tenants as it confirms that evidence is required to support assertions made, and the balancing exercise inherent in considering whether to grant or refuse an application for eviction.
Factual background
Mr Mackellar, the landlord of a residential property in the west of Scotland, let his apartment to Ms Carlin (tenant), under a Private Residential Tenancy. The monthly rent was £675 and this was paid in part by the benefits the tenant was in receipt of. The tenant had three children under ten, two of whom were enrolled in local school.
Beginning in July 2023, the tenant fell into rent arrears following a change in her benefits. She proposed a reduced rent to the landlord, which was declined. Thereafter, she made partial payments, creating a monthly shortfall. By February 2024, when the Notice to Leave was served, arrears had accumulated to £1,281.67 and continued to rise. Importantly, the tenant did not respond to correspondence, made no proposals to pay the arrears, and did not participate in either the FTS or UT proceedings.
The original decision
In October 2024, the FTS refused to grant the landlord’s application for eviction under Ground 12 of Schedule 3 to the 2016 Act. Although it found that the tenant had indeed been in arrears for over three consecutive calendar months, satisfying the statutory condition under section 12(3)(a), the FTS determined that it was not reasonable to grant the eviction order under section 12(3)(b).
The FTS's refusal was grounded in three primary findings:
- Impact on the tenant and her children
The FTS concluded that granting the order would render the tenant and her children homeless, interfere with the children’s schooling, and cause significant emotional and psychological distress to the family. While the FTS acknowledged that the tenant would likely receive priority for local authority housing, it observed that any rehousing might be delayed or result in unsuitable temporary accommodation. - Impact on the landlord
The FTS found that the landlord was continuing to make a monthly profit—estimated at £400 to £450—even accounting for the £125 monthly shortfall in rent. The arrears at the start of proceedings were said to be less than two months’ rent, which the FTS characterised as relatively low. As such, the FTS concluded that the landlord was not suffering any real financial hardship. - The landlord’s conduct
The FTS criticised the landlord for not pursuing recovery of the arrears through alternative means (such as action against the tenant’s guarantor). It inferred from his inaction that the eviction application was motivated by a desire to remove the tenant without dealing with the inconvenience of arrears recovery. The FTS stated that eviction, particularly where the arrears are of low value, should be “an action of last resort.”
Based on these assessments, the FTS found that the hardship caused to the tenant outweighed that experienced by the landlord and refused the application.
Grounds of appeal
The landlord appealed to the UT on five grounds, alleging that the FTS:
- Erred in concluding that eviction was unreasonable in circumstances where the tenant had failed to pay full rent for over a year, ignored all correspondence, and made no proposals to address arrears.
- Miscalculated the landlord’s profit and thus misrepresented the financial impact on him.
- Incorrectly found that eviction would have no meaningful impact on the landlord.
- Speculated, without supporting evidence, that eviction would result in homelessness and schooling disruption.
- Misdirected itself in law by suggesting that eviction should only follow other avenues of recovery being exhausted.
The UT decision
Sheriff Reid, presiding for the UT, upheld the appeal and quashed the FTS’s decision, granting the eviction order.
The UT found that the FTS had fallen into multiple legal and evidential errors in reaching its decision, stating that no reasonable tribunal could have concluded, on the evidence available, that eviction was not reasonable. The decision went on to clarify key legal standards and offered practical guidance for future tribunals.
- Inadequate evidential basis
The UT found that the FTS’s conclusions about the landlord’s alleged profit from the tenancy and the potential consequences of eviction on the tenant’s family were speculative and unsupported by reliable evidence. The FTS had made no findings from any expert or direct testimony regarding homelessness risk, schooling interference, or the family's likelihood of being offered suitable accommodation. As the tenant did not participate in proceedings or provide any documentation, these assumptions were unjustified. - Mischaracterisation of financial impact
The UT rejected the FTS’s suggestion that the landlord suffered no meaningful harm. On the accepted evidence, the landlord had suffered a 20% loss in expected rent income. Moreover, there was no evidence that the tenant was willing or able to repay the arrears or resume full payments. According to the UT, this clearly constituted a meaningful financial detriment. - Error in legal reasoning
The UT held that the FTS misdirected itself in law by suggesting that eviction actions must only follow unsuccessful recovery attempts. While tribunals must assess the reasonableness of granting an order, there is no legal requirement that a landlord first seek payment enforcement through court actions or debt collection.
The UT made clear that while the FTS may consider the proportionality of eviction in light of relatively low arrears, this does not mean that recovery action in respect of the rent arrears is mandatory before eviction can be justified. - Flawed assessment of reasonableness
Ultimately, the UT concluded that the FTS’s decision failed to properly weigh the relevant factors. It placed undue weight on speculative and unevidenced claims while downplaying the tenant’s sustained non-payment and the financial impact on the landlord. The UT stated that the tenant’s complete failure to engage or make any proposals meant the balance of reasonableness favoured the landlord.
On that basis, the UT exercised its discretion under section 47(2)(a) of the Tribunals (Scotland) Act 2014 to remake the decision and grant the eviction order directly, rather than remit the case back to the FTS.
Legal significance and practical guidance for landlords and lenders
Evidence is paramount
The FTS cannot make assumptions about a tenant’s hardship or a landlord’s financial position without supporting evidence. Oral testimony must be backed up with verifiable evidence where possible, and speculation will not suffice. Accordingly, tenants opposing eviction on the basis of reasonableness should come prepared with documentation (e.g. housing applications, school information, financial hardship records).
No legal duty to exhaust alternatives
The UT clarified that landlords are not legally required to pursue arrears recovery through litigation or enforcement action before seeking eviction. That said, evidence of a landlord acting reasonably and in good faith is likely to still be relevant.
Objective assessment of reasonableness
Reasonableness under Ground 12 is an objective test. Tribunals must fairly evaluate the consequences for both parties, based on the totality of the evidence. Emotional appeals or assumed but unvouched consequences should not override clear contractual breaches, especially when sustained over time.
Conclusion
This appeal is a key decision that will impact on FTS decisions in the future, emphasising that what is reasonable in eviction cases cannot be presumed, assumed, or speculated: it must be demonstrated.
While tenants deserve protection from unjustified eviction, landlords equally deserve protection from prolonged and unnecessary financial harm. The UT’s clear restatement of evidential and legal standards will guide future decisions and ensure the test of reasonableness is considered with the consistency the law demands.
Where a landlord seeks to evict, satisfying the FTS that it is reasonable to do so in the circumstances is a test which cannot be underestimated. While the vast majority of landlords generally ensure that all papers are served in line with rules, this alone may not be sufficient to obtain an order for eviction. In assessing reasonableness as a final test, all parties should be aware of the importance of producing substantive and verifiable evidence in support of their position.
In upholding the landlord's appeal and granting the eviction order in this case, the UT reinforces the legal standard that tribunals must provide clear, structured, and evidence-based reasoning in their decisions. Failure to do so undermines judicial accountability and exposes decisions to appeal. This is welcome clarity.
