05 Mar 2019

What Arises out of An Assured Tenancy?

­­What Arises out of An Assured Tenancy?

We previously blogged about the creation of the new Private Residential Tenancy and the transfer of jurisdiction from the Sheriff Court to the First-Tier Tribunal for Scotland Housing and Property Chamber for Scotland in relation to the majority Private Sector Matters. Now, more than a year on, landlords, letting agents and their solicitors should by now be aware that since 1st December 2017 actions ‘arising from’ assured tenancies (as well as regulated tenancies, part 5 contracts and PRTs) should be raised with the Tribunal.  However, a recent Note by Sheriff Jamieson sitting at Dumfries Sheriff Court indicates that may not be the case.

The case of Parker and Parker v Inkersall Investments Limited [2018] SC DUM 66 came before Sheriff Jamieson in September 2018, almost six months after the writ was lodged in March 2018. The Sheriff sought clarification as to whether the dispute related to an assured tenancy and after further procedural hearings parties conceded the Sheriff Court did not have jurisdiction and the action was dismissed. Much of the Sheriff’s note relates to liability for expenses but his comment on the Tribunal’s ‘civil jurisdiction’ is of interest.

Sheriff Jamieson considered the Decision of the Upper Tribunal in Friel v Lafferty UTS/AP/17/009 where it was held that the transfer of the Sheriff’s jurisdiction was unrestricted if the relevant legislation is silent ­­­­­on such restriction. There is nothing within the Housing (Scotland) Act 2014 or Private Housing (Tenancies) (Scotland) Act 2016 restricting the transfer or jurisdiction. Accordingly, the Tribunal may have the power to grant any remedy including interdict, declarator or damages for breach of contract arising from a tenancy. Sheriff Jamieson considers a more cautious interpretation limiting the transfer only to contractual disputes which would mean the Tribunal did not have powers for example to reduce a tenancy agreement or consider delictual claims arising from use of a privately let property.

It is noted that the transfer of jurisdiction probably only refers to proceedings within the ordinary powers of the Sheriff and not any special statutory functions. We are reminded that Sheriffs still have jurisdiction under the Antisocial Behaviour Etc (Scotland) Act 2004 to grant ASBOs in relation to private tenancies and to make orders for transfer of such tenancies between spouses/civil partners under the relevant matrimonial legislation. The note concludes by suggesting those intending to raise Tribunal proceedings first search the database of decisions to ascertain what has, or has not, been treated as being within the Tribunal’s civil jurisdiction.

Indeed, as the case law develops, the Tribunal’s database is an increasingly useful tool. For example, in Ross v Robertson and Robertson CV/181571 an application for payment against a guarantor was rejected. On the face of it, such a dispute may appear to ‘arise out of’ an assured tenancy, however, the Tribunal applied the reasoning in Sauchiehall Street Properties One Limited v EMI Group Ltd 2015 Hous LR 24 and found the parties were the creditor and debtor, the subject matter was the guarantee agreement, not a tenancy and object was to enforce an obligation under said guarantee. In other words, the object of proceedings were ‘only indirectly linked’ to a tenancy. Accordingly, the Tribunal did not have jurisdiction and such a claim should have been raised with the Sheriff Court.

If you unsure of the forum in which to raise an application, please contact Rory Cowan.