The existence of a repairing standards enforcement order (RSEO) under the Housing (Scotland) Act 2006, ss 22-24 does not prevent a repossession order being granted for a house let on an assured tenancy, the Inner House of the Court of Session has ruled.
Lord President Carloway, Lord Malcolm and Lord Glennie gave their decision in refusing an appeal by Nicholas Charlton, tenant of a cottage in Taynuilt, Argyll, against a decision of the Upper Tribunal to grant an order for possession in favour of the owners, The Josephine Marshall Trust, who had obtained planning permission to demolish the cottage. The Upper Tribunal had refused to revoke the RSEO, granted to the tenant in March 2017 with a subsequent extension of time granted to the landlords, as a safeguard against a change of intention by the landlords.
The Upper Tribunal concluded that an RSEO was not a legal barrier to a landlord forming an intention to demolish. Both statutory regimes could operate side by side in harmony: the RSEO remained in place until the subjects were demolished, and thereafter, if need be, it could be revoked. The First-tier Tribunal’s decision in favour of the tenant was an unwarranted interference with a fundamental property right, and led to the absurd result that a property beyond economic repair could not be demolished until expenditure was wasted on its "repair".
Before the Inner House the tenant argued that the Upper Tribunal had denuded the RSEO of its practical and legal effect. Failure to comply with an RSEO without reasonable excuse was a criminal offence. The exceptions to compliance were set out in the 2006 Act; there was no mention of an intention to demolish the subjects. By renting a property, an owner accepted a restriction on their ability to do as they pleased with it. The repossession order circumvented the RSEO. If the property was repaired to the necessary standard, there would be no need for demolition. It was disputed that the cottage was beyond economic repair.
Giving the opinion of the court, Lord Malcolm said the case law demonstrated that, apart from the RSEO, there was no obstacle to granting the landlord’s application on the basis of an intention to demolish the cottage. There was no good reason to think that the trustees would change their mind, not least given that the condition of the cottage made the proposed work obviously desirable.
With regard to the tenant's argument, it was important to notice at least two things. First, if demolition occurred, it would be because the same tribunal system which imposed the RSEO had granted the repossession order. "The landlord’s intention, and its legality, should be viewed in that context." Secondly, an RSEO was not set in stone until it was obeyed: it could be revoked if no longer necessary; demolition would be such a circumstance.
Lord Malcolm continued: "Given these considerations, it is difficult to categorise an RSEO as an insurmountable obstacle to a landlord forming a lawful intention to demolish. And, contrary to the tenant’s submission, demolition is not circumventing the RSEO; it is the end point of a different process under the [Housing (Scotland) Act 1988], which can and does operate in harmony with the repairing standard regime. Once it is appreciated that an RSEO is not fixed and immutable, the tenant’s objection falls away. The appropriate intention can be formed on the basis that the tribunal can grant the possession order, either contemporaneously with a revocation of the RSEO, or on the anticipation that this will be done after demolition has occurred."
He concluded: "The situation of an order for possession running alongside an extant RSEO is the result of two separate regimes being operated to their respective end points according to their own rules and processes."