Terra Firma Chambers' Kenneth Young successfully represented the appellant in an appeal to the Upper Tribunal against a decision that a heritable creditor, which was not in possession, was responsible for the statutory repairing obligation in a tenanted flat.
The creditor held decree from the Sheriff at Edinburgh, which entitled it to possession. However, there were tenants in the property and by the time of the decision under appeal the creditor was pursuing an (ultimately successful) action in the first-tier tribunal for vacant possession. The tenants sought various repairs and directed their application towards the creditor, rather than the landlord.
The effect of the First-Tier Tribunal’s decision was that the heritable creditor was found to have stepped into the shoes of the landlord. Specifically, the Tribunal found that the heritable creditor has assumed the landlord’s repairing obligation. The heritable creditor successfully argued that this was an error of law.
The decision of the Upper Tribunal is a reminder that a heritable creditor’s right to sell the subjects does not make it the owner, and a decree for possession is not the same as taking possession. These concepts are distinct in Scots law, and courts will maintain that separation. Applications from tenants or other interested parties must be directed against the correct defender.
The Upper Tribunal explained: “The FTS elides the distinction between heritable creditor and heritable creditor in possession. That issue matters for the answer to the question as to whether the appellant is properly designed as landlord in this application and has an obligation to fulfil the repairing standard in relation to the subjects.”
“The decision of the FTS, that the appellant is the landlord for the purposes of this application, amounts to an error of law. The landlord who is obliged to comply with the repairing obligation in terms of the 2006 Act is [the registered owner], the heritable proprietor who contracted with the respondents.”
The Upper Tribunal upheld the appeal and dismissed the application, which it held to be incompetent.
The full judgement can be read here.
