What is the test?
The recent Upper Tribunal decision in Boyle v Ford 2023 UT 04 serves as a reminder to the proper approach to the question of reasonableness in eviction cases.
The case concerned a landlord who sought to evict a tenant from a property, relying on the landlord’s intention to sell. The eviction order was granted by the First-tier Tribunal and overturned on appeal. Part of the appeal related to whether the First-tier Tribunal erred in law in its assessment of the reasonableness of granting the eviction order.
It is important to highlight that the question of reasonableness involves the exercise of judicial discretion. Generally, an appellate court will not overturn a discretionary decision simply because it may have reached a different conclusion. Instead, there must be an error of law in the Tribunal’s exercise of its discretion. Sheriff Jamieson found that such an error of law existed in this case. In particular, the Tribunal had misdirected itself on the law by reversing the reasonableness test. The Tribunal erroneously started from the position that it was reasonable to evict, thereby requiring the tenants to show reasons why the Tribunal should refuse the order.
Sheriff Jamieson also considered the Tribunal “failed to demonstrate that it took into account, and properly weighed and balanced, all relevant considerations, in reaching that conclusion”. In particular, he found the Tribunal misapprehended and placed undue weight on evidence given by the tenant as to intention to vacate and failed to consider the circumstances of the landlord.
Obligation of landlords
Landlords who seek an eviction order must put before the Tribunal sufficient information to satisfy the Tribunal that eviction is reasonable even if the case is undefended. In cases involving the landlord’s intention to sell, this should include information regarding the landlord’s circumstances, reasons for selling and consequences for the landlord should the order be refused. Further, the landlord should provide information of the tenant’s circumstances so far as known to the landlord such as age, household composition and financial circumstances, either current or historical. Landlords are entitled to request such information from tenants for this purpose but cannot compel a response. Nonetheless, a failure to disclose despite requests is a further matter, which the Tribunal can weigh up in its overall assessment of the reasonableness of eviction.
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