Father wins appeal to assign tenancy of housing association property to daughter



Sheriff Court
Sheriff Court

A housing association tenant whose application to assign the tenancy of the property to his daughter was rejected has successfully challenged the landlord’s decision.

A sheriff ordered the housing association to consent to the application after ruling that the refusal was “not reasonable”.

‘Assignation’

Sheriff Tony Kelly heard that the pursuer Keith Docherty had lived in the three-bedroom flat in London Road, Glasgow with his wife Robina and two children Shannen and John since 2008 under a Scottish Secure Tenancy Agreement with landlord Tollcross Housing Association.

However, in August 2019 following a breakdown in the couple’s relationship Robina moved out and into a new home she had purchased in Tantallon Road, Baillieston.

But the situation improved and on 28 August 2019 the pursuer submitted an application to the defenders to assign the tenancy to his 23-year-old daughter, with a view to him moving in with his wife at the property in Baillieston.

The pursuer’s daughter also made attempts to change the arrangements for payment of rent due for the property to be debited from her bank account, but the defenders refused to allow her to do so.

By letter dated 4 September 2019, the defenders then refused to consent to the pursuer’s application to assign the tenancy because he failed to follow the correct process, but no explanation was given, although the landlord’s housing manager gave evidence to the court that the reason was that not all information about their family circumstances had been disclosed.

Then, on 27 December 2019 a notice of proceedings for recovery of possession, in terms of section 14(2) of the Housing (Scotland) Act 2001, was served on the pursuer on the basis that he had breached the tenancy agreement because he was no longer residing at the property and accordingly it was no longer his only principal home.

‘Under-occupancy’

The defender’s housing manager told Glasgow Sheriff Court that they had received information from a neighbour that Mr Docherty was no longer living in the property, meaning it was “under-occupied”.

But at the time of the application the pursuer continued to reside there with his daughter and his 29-year-old son.

The pursuer told the court that the landlord had failed to take into account the housing needs of his children, who would be rendered homeless if forced to move out.

The court also heard that by the time the pursuer did move out his daughter’s friend had moved into one of the bedrooms, so the property would not be under-occupied and the defenders admitted this would have made a “big difference” to the decision made.

The sheriff ruled that the defenders failed to have regard to factors which prima facie were relevant to their consideration of whether to consent to the pursuer’s application or not.

They failed to take into account the fact that the pursuer and his family had resided at the property for a significant period of time with no reported anti-social behaviour complaints, and failed to have regard to the potential good behaviour of the prospective assignee.

They also failed to have regard to the proper and timeous settlement of rent obligations by the pursuer over the term of the tenancy; they failed to have regard to the prospective assignee being in a position to continue to settle the rent timeously.

‘Refusal not reasonable’ 

In a written judgment, Sheriff Kelly said: “The communication of refusal to consent to the assignation dated 4 September 2019 was inaccurate. It left unexpressed other factors that informed that decision, namely (a) that the pursuer had not disclosed (to an extent unspecified) all of the information relative to the family circumstances; and (b) that the pursuer had failed to follow procedures and processes (to an extent unspecified) that apply in connection with such applications.

“In so far as the decision was informed by these factors, I consider that the defenders took into account irrelevant factors. It is difficult to see how these various factors could, in terms of the tenancy agreement, the Assignation Policy, at 5/2 of process, or section 32(3) of the 2001 Act, be relevant in assessing the reasonableness of the defender’s consent to the pursuer’s application to assign.

“In connection with the reason provided for in their letter to the pursuer for refusing his application, namely under occupancy, the defenders moved from a factual premise undisclosed to the pursuer. They either decided that the property would be under occupied in the event of Shannen Docherty living there alone, or in the event of Shannen Docherty living there with her brother John Docherty. I was left in some doubt what factual basis the letter of refusal proceeded upon.”

“Further,” he added, “in assessing the whole facts and circumstances the defenders failed to take into account relevant factors. They failed to enquire and properly inform themselves as to what was happening or what would happen at the property in the event of the assignation being granted. I was not told of their enquiries with neighbours and whether these were initiated by the defenders or information was volunteered to them.

“What is clear, however, is that no enquiry was made of the pursuer and his family – to ascertain their position in relation to the fruits of the defenders’ enquires (if that was what happened) and to obtain from the Docherty family members direct who they say was residing at the property.

“The defenders paid no heed to the pursuer’s tenancy of this and a previous property. In regard to each, there was no difficulty in settling the rent and an absence of neighbour complaints on anti-social behaviour issues.

“The Docherty family’s occupation of the property at 1591 London Road since May 2008 was left wholly out of account. The prospective assignee’s occupation of the property as her family home since May 2008 was left out of account.

“Shannen Docherty is in full-time employment as is her brother. The ability of the prospective assignee to continue to meet rent when it becomes due does not appear to be an issue. On the face of it these appeared to be relevant factors. None were taken into account.”

The sheriff concluded: “In all the circumstances, having regard to the foregoing matters which informed my assessment of the reasonableness of the defenders’ refusal to consent to the pursuer’s assignation, I considered that such refusal was not reasonable. In those circumstances the outcome is mandated by paragraph 15 of Schedule 5 to the Housing (Scotland) Act 2001. I ordered the landlord to consent to the application.”

© Scottish Legal News Ltd 2020