Notices to leave a private residential tenancy, which specified the day following 28 days after the date of the notice as the date they would take effect, were valid as the rule presuming a notice to have been received 48 hours after it was "sent" did not apply, the Upper Tribunal has held.
Sheriff Iain Fleming gave the decision in allowing an appeal by James Smith, landlord of a property in Bothwell, against a decision of the First-tier Tribunal refusing his application for an eviction order against his tenants Lynne MacDonald and Steven Munro on the basis that the purported notices to leave did not meet the definition in s 52(2) of the Private Housing (Tenancies) (Scotland) Act 2016.
The notices were served on 28 November 2019, specifying 27 December as the first date on which action could be taken. The landlord argued that the fact that the notices were served by sheriff officers allowed the assumption in s 62(5) of the Act, by which a document served "is to be taken to have been received 48 hours after it was sent unless the contrary is shown", to be rebutted. The tribunal held that an assumption, as opposed to a presumption, was not capable of rebuttal and the notices were deemed to have been received on 30 November.
Allowing the appeal, Sheriff Fleming said the purpose of the provisions of the 2016 Act was to ensure that a tenant had a minimum period of notice. "The FtT accepted that the notices were received by the respondents on the date when the sheriff officers delivered them. Indeed a certificate of intimation from the sheriff officers is produced...
"In my view s 62(5) does not apply in this case because the notices were not sent. They were delivered. The notice period began when the tenants received the notices (s 54(2)(a) of the 2016 Act). In a case such as this where there is personal delivery the tenants received the notices on the day they were delivered."
He added that the tribunal did not appear to have considered the terms of the lease between the parties, where it was agreed therein that all communications made under the 2016 Act would be "hard copy by personal delivery or recorded delivery". Service was carried out in the agreed way, and in terms of s 26(2)(a) of the Interpretation and Legislative Reform (Scotland) Act 2010, namely by personal delivery. Section 26(5) of that Act, which contained a similar 48 hour rule, only applied where a document was "sent" and "unless the contrary is shown".
Nor was the tribunal correct to state that an assumption could not be rebutted.
However, had the tribunal been correct, the landlord would not have been able to rely on the provision in s 73 of the 2016 Act for disregarding minor errors that did not materially affect the effect of the document, since that could not apply to an error that reduced a period of notice to a tenant.