Wrongful Termination Orders

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In July 2019, the First Tier Tribunal issued an eviction order for a tenant living in a small studio flat in Edinburgh. The ground for eviction was that the landlord – along with his wife and daughter – wished to move from their 3 bedroom house into the studio flat.

Schedule 3 (4) of the Private Housing (Tenancies) (Scotland) Act 2016 states that a landlord wishing to recover a property to live in is a mandatory ground for eviction – in other words, the Tribunal must issue an eviction order.

Relations between the landlord and tenant had been strained for some time. It was the tenant’s belief that the landlord wished to evict the tenant and was using eviction ground 4 – an intention to live in the property – as an excuse. The Tribunal found, as they had to, that the test of establishing ground 4 had been met and issued an eviction order.

The tenant left in January 2020. In February, a new tenant moved into the property. The landlord remained in his three bedroom house.

The evicted tenant applied for leave to appeal the Tribunal decision. This was rejected. With the support of the Community Help and Advice Initiative, the tenant then applied for a Wrongful Termination Order. This in itself is an unusual step.

Even more unusually, in November 2020, the Tribunal granted it.

Wrongful Termination Orders were introduced by sections 57 to 60 of the 2016 Act. A tenant who has been evicted but believes that the landlord misled them can apply to the Tribunal for a Wrongful Termination Order. A tenant can apply whether they were issued an eviction order by the Tribunal or if they simply left the property when asked to.

(And most tenants do simply leave – because they have found another home, or it suits them to do so, or they do not want to kick up a fuss, or they are wary of entanglement in the court system.)

There have been previous applications for Wrongful Termination Orders. Although Scottish Housing News reported that the November 2020 decision was the first successful application for a Wrongful Termination Order, an earlier decision in December 2019 saw the Tribunal award £1,200 to a tenant it judged to have been wrongfully evicted. In that case, the landlord evicted the tenant on the ground that they wished to live in the property – but then took Airbnb bookings instead of moving in.

The vast majority of eviction cases lead to a successful eviction order for the landlord. This has been true even during the pandemic, although it is not yet clear what effect the Scottish Government’s temporary transformation of mandatory grounds to discretionary grounds will have. Applications for Wrongful Termination Orders are rare, and success is rarer still.

How many tenants have access to the help and support needed to apply? How many tenants are even aware that this is an option? The vast majority of tenants do not even attend Tribunal hearings when summoned. Organisations like CHAI and Living Rent do phenomenal work, but their resources are stretched. There is a chronic lack of awareness among tenants about their rights.

There is also a fundamental flaw in the legislation. As the Tribunal pointed out in the decision notice, the bar set by the Scottish Government for proof of the landlord’s intention to live in the property is very low indeed. Coronavirus changes aside, you can legally evict your tenant by providing an affidavit stating that you intend to live there.

The reforms of the last few years have strengthened the rights of tenants in Scotland. Yet it remains the case that a landlord who wishes to be rid of a tenant can evict them on the strength of a promise that they are telling the truth. There is no follow-up. Nobody checks that they were telling the truth. It takes a tenant who has both the willpower to push ahead and the support of a charity to uncover a wrongful eviction. It goes without saying that most tenants do not have these resources.

The maximum penalty that can be imposed by the Tribunal in the case of a wrongful termination is six months’ rent. In the November 2020 case, £1,350 was awarded to the tenant – three months’ rent. The Tribunal took both the landlord’s continued dishonesty and the tenant being in rent arrears into consideration.

When a Wrongful Termination Order is issued, the Tribunal sends it onto any local authorities who have the landlord on their landlord register. This is significant because of the fit and proper person test that local authorities should conduct on prospective landlords. Clearly, a landlord who has deliberately misled the Tribunal is not a fit and proper person to hold a landlord registration. It is worth noting in this context that the landlord who was the subject of the 2019 WTO referred to above (who let the property as AirBnB despite claiming that they intended to live there) remains on the Landlord Register.

The rarity of successful Wrongful Termination Orders reveals the flaws in the 2016 act. A priority for the next government should be fixing this legislation so that the rights of landlords and tenants are properly balanced. The private rented sector is crying out for reform. The starting position of any reform should be that housing is a human right, that a tenant’s home is in fact their home and that they should only be evicted in the most exceptional circumstances.

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