QUEENS CROSS HOUSING ASSOCIATION v McALLISTER
| Jurisdiction | Scotland |
| Judgment Date | 16 May 2003 |
| Docket Number | No 42 |
| Date | 16 May 2003 |
| Court | Court of Session (Inner House - Second Division) |
SECOND DIVISION
Conveyancing and heritable property - Housing - Right to buy - Housing association tenant under tenancy with right to buy moving to tenancy of different premises with same landlord - Whether right to buy lost by tenant - Housing (Scotland) Act 1988 (cap 43) sec 43(3)1
The Tenants' Rights Etc (Scotland) Act 1980 (cap 52) and the Housing (Scotland) Act 1987 (cap 26) provided that tenancies held from housing associations were one of the categories of secure tenancies which carried the right of the tenant to purchase the premises let. The Housing (Scotland) Act 1988 provided that after January 1999 tenancies would no longer be secure tenancies and did not carry the right to purchase. Section 43 of the 1988 Act provided that the change did not affect existing tenancies, as follows. Section 43 (3) provided: 'A tenancy which is entered into on or after [2 January 1989] cannot be a secure tenancy unless - (c) it is granted to a person who, immediately before it was entered into, was the secure tenant of the same landlord (d) it is granted to a person in the following circumstances - (i) prior to the grant of the tenancy, an order for possession of a house was made against him on the court being satisfied as mentioned in paragraph (b) or paragraph (c) of subsection (2) of section 48 of the Housing (Scotland) Act 1987; and (ii) the tenancy is of premises which constitute the suitable accommodation as to which the court was so satisfied; and (iii) in the proceedings for possession referred to in sub-paragraph (i) above the court directed that it would be a secure tenancy.'
A housing association was the landlord of a building at Clarendon Place, Glasgow. From September 1986 to November 1991, the respondent was tenant of flat 3/2 in the building under a secure tenancy. From November 1991 the respondent was tenant of flat 1/2 in the building under a secure tenancy. The tenant applied to purchase flat 1/2. The housing association refused her application. The tenant appealed to the Lands Tribunal, who found in her favour. The housing association appealed to the Court of Session and argued that the protection conferred by sec 43(3) applied only where the successive tenancies related to the same dwelling-house.
Held that sec 43(3) applied where the successive tenancies related to different dwelling-houses (pp 517F-519D); and appealrefused.
QUEENS CROSS HOUSING ASSOCIATION appealed to the Court of Session under sec 11(1) of the Tribunals and Enquiries Act 1992 against a decision of the Lands Tribunal for Scotland dated 22 November 2001.
Cases referred to:
Arogol Co Ltd v Rajah [2002] HLR 21
Knowes Housing Association v MillarSC 2002 SC 58
Laimond Properties Ltd v Al-Shararchi (1998) 30 HLR 1099
Textbook referred to:
Woodfall Landlord and Tenant (K Lewison and J Brock eds, Sweet and Maxwell, 1978)
The cause called before the Second Division, comprising the Lord Justice-Clerk (Gill), Lord Kirkwood and Lord Weir for a hearing on the summar roll.
At advising, on 16 May 2003 -
LORD JUSTICE-CLERK (Gill)-
[1] This is an appeal against a decision of the Lands Tribunal for Scotland on a question arising under the 'right to buy' provisions of the Housing (Scotland) Acts 1987 (the 1987 Act) and 1988 (the 1988 Act). It relates to the tenancy of flat 1/2, 14 Clarendon Place, Glasgow, of which the appellant is the landlord and the respondent is the tenant. The appellant is a registered housing association within the meaning of the 1987 and 1988 Acts.
[2] The respondent was tenant of the appellant of flat 3/2 in the same building from 12 September 1986 until 26 November 1991. Her tenancy was a secure tenancy under the Tenants' Rights, Etc (Scotland) Act 1980 (the 1980 Act) and, after 15 August 1987, the 1987 Act. On 2 January 1989, the 1988 Act came into force. On 26 November 1991 the respondent became tenant of flat 1/2 and has continued in that tenancy ever since. The respondent has occupied flat 3/2 and flat 1/2 in each case as her only or principal home.
[3] After the respondent became tenant of flat 1/2 she applied to the appellant to purchase the flat. The appellant refused her application on the ground that she did not qualify for the right of purchase under sec 61 of the 1987 Act. The respondent thereupon applied to the Lands Tribunal for Scotland for a finding under sec 68(4) of the 1987 Act that she had the right to purchase. In the decision appealed against the Tribunal...
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