Upper Tribunal rules one-day mistake in date in eviction notice did not invalidate landlords’ application

About this case:

• Citation:
  2025UT68
• Judgment:
  External link
• Court:
  Upper Tribunal for Scotland
• Judge:
  Sheriff S G Collins

John and Elizabeth Halcrow, the owners of subjects in Lerwick occupied by tenants Ben Davies and Shauni Hunter, argued that the failure to state the correct date was not an error which materially affected the validity of the document in terms of section 73 of the Private Housing (Tenancies) (Scotland) Act 2016. The respondents did not oppose the appeal and offered no written response in answer to it.

The appeal was considered by Sheriff Simon Collins KC on the papers, with neither party seeking an oral hearing.

Proper construction

The respondents became tenants of the appellants’ property on 27 January 2020, pursuant to a private residential tenancy agreement under the 2016 Act. It was agreed by the respondents that any notices which might be served on them under the Act in relation to the tenancy could be sent by email. The appellants later decided to sell the property and so instructed their letting agents to draw up a notice to leave, which was sent to the respondents on 6 December 2023 with the notice period starting on 8 December.

In Part 4 of the notice, which was on a form prescribed by section 62(1)(d) of the 2016 Act, it was intimated that the appellants would apply to the FTS for an eviction order on 1 March 2024, rather than 2 March 2024 (the day after the expiration of the notice period). The notice went on to state that the date was at least the day after the end date of the relevant notice period, in this case 84 days. In any event, no application was lodged with the FTS until 11 June 2024, nearly 15 weeks later.

The FTS determined that, as the stated date of 1 March 2024 did not comply with the requirements of section 62(4) of the 2016 Act, the application was frivolous in terms of rule 8(1)(a) of the chamber’s rules of procedure. In their application for permission to appeal, the appellants argued that on a proper construction of the 2016 Act, the assumption that a notice would be received by the tenant 48 hours after it was sent did not apply where it was clear that the notice was in fact received earlier than this.

In their second ground of appeal, the appellants argued that even if the notice did fail to comply with the statutory provisions in the manner stated, this did not invalidate it as the error was a minor one. In effect, the FTS had held that for a landlord to state the wrong date in a notice to leave would always materially affect the effect of it, and therefore notwithstanding section 73 such an error would always render the notice invalid.

A trap for landlords

In his decision, Sheriff Collins said of the notice period requirements: “For the purposes of determining when the relevant notice period expires, it is to be assumed that the tenant will receive the notice 48 hours after it is sent. This assumption is not expressly subject to the contrary being shown, and such a qualification is not to be implied by section 26(6) of the Interpretation and Legislative Reform (Scotland) Act 2010. This is because the context of section 62(5) is the calculation of the notice period, not the service of the notice itself, which is the issue towards which section 26(6) is directed.”

He continued: “These unnecessarily complex provisions set a trap for landlords. The working out of the correct date to be stated in the notice to leave, by reference to sections 54 and 62, presents an exercise that would challenge a legally qualified person let alone a lay person. Section 4 of the prescribed form is apt to mislead by its reference to “the day after the end date of the relevant notice period (28 days or 84 days…)”. This fails to take account of section 62(5), and therefore to make clear that the relevant notice period will not start until 48 hours after the notice to leave is sent.”

Assessing the appeal grounds put forward by the appellants, Sheriff Collins said: “In relation to the first ground of appeal much of the reasoning of the FTS in the present case cannot be faulted. The notice was sent by email on 6 December 2023. Even though it was received and acknowledged almost immediately, for the purpose of calculating the date to be stated in part 4, it had to be assumed that the notice would not be received until 8 December 2023. This was therefore the day on which the period of notice began.”

However, he went on to say of the FTS’ second reason for refusal: “I am unable to accept the FTS’ reasoning. It proceeds on too narrow a reading of the statutory language. It is plainly an important purpose of the notice to tell the tenant when the landlord expects to apply for an eviction order. But this does not necessarily mean that an error in stating the correct date will ‘materially affect this effect’. It is a matter of facts and circumstances. In some case it might do so, in others it need not.”

Sheriff Collins concluded: “If it is apparent that the tenant has in fact received a longer period of notice than that required by the statute notwithstanding the error, then it runs counter to a common sense approach to section 73 to exclude this from the assessment of materiality. Still more so is that the case where, as here, the error in the date could have had no practical effect on the earliest date when the landlord could have lodged their application, because both the erroneous and the correct dates fell on a weekend. And still more so is that the case where, again as here, the tenants themselves do not seek to oppose this appeal and so do not appear to regard the effect of the error as materially prejudicial to their interests.”

The appeal was therefore allowed, with the case remitted to the FTS to determine the application on its merits.