Let’s go WTO! Some analysis of wrongful-termination orders for former tenants under the Private Housing (Tenancies) (Scotland) Act 2016

This is a blog post about private renting in Scotland. More specifically, it is about a legal device that can be available to those who had rented a property under a private residential tenancy – the prevailing letting vehicle in Scotland since 1 December 2017 – where their landlord has been fly and regained possession of the let property when they had no legal ground to do so.

This post doubles as a signpost to a piece I have in the new issue of the Scots law journal the Juridical Review (co-authored with Peter Robson). It also links to a related podcast episode, where I discuss the article and various other matters with Professor Bram Akkermans of Maastricht University.

Let’s start with a quick overview of the relevant law. Scotland introduced a new private residential letting vehicle, known as the private residential tenancy (PRT), when the Private Housing (Tenancies) (Scotland) Act 2016 came into force. Unlike the short assured tenancy (the letting vehicle that dominated the Scottish private rented sector after its introduction by the Housing (Scotland) Act 1988), PRTs cannot be of a set length. PRTs are essentially open-ended, provided that the tenant lives in the let property as their main home, pays their rent, and doesn’t somehow breach the tenancy agreement.

Accordingly, tenants with a private residential tenancy of a dwelling in terms of the Private Housing (Tenancies) (Scotland) Act 2016 should be able to live there until they decide to move out, unless their landlord has a ground to evict them in terms of the 2016 Act. A finite list of grounds is provided in Schedule 3 of the 2016 Act, including grounds that relate to the landlord’s circumstances (such as requiring the property to live in for themselves or a family member, or needing to sell the property with vacant possession).

This means that landlords who grant such tenancies need to rely on one of eighteen statutory grounds to recover possession of a let property. The grounds reflect the fact that a landlord’s circumstances might genuinely change – for example, the landlord may have been renting property in another city for work and then takes a new job in the city where the let property is, or is living with a partner in a property owned by that partner and then the relationship breaks down. Such a landlord will need somewhere to live and – despite any upheaval for the tenant(s) who currently live there – the let property might well be a much more viable place for the landlord to stay than buying or renting another property. Alternatively, a landlord’s sibling might need accommodation in the area and have nowhere else to stay. In these and other circumstances, the landlord can approach a tribunal for an order to evict the tenant(s).

Assuming a ground for possession exists and has been notified to the tenant, the tenant might be obliged to vacate the premises through subsequent eviction proceedings at the First-tier Tribunal (Housing and Property Chamber), or the tenant may simply move out without awaiting a tribunal order. If a (now former) landlord did indeed have a valid ground for possession, that would be the end of the matter, but what happens if a landlord did not have a genuine reason for recovery of possession, but pretended that they did?

Where it transpires there was no ground for possession after all, the 2016 Act allows a (now former) tenant to apply to the First-tier Tribunal for something called a wrongful-termination order. Where a WTO is made, the former landlord can be ordered to pay the former tenant a penalty sum up to six times the monthly rent that was payable.

How does this work in practice? Or rather, is the system working in practice? That is what the article in the Juridical Review is about. It looks at the emerging WTO tribunal jurisprudence, and argues that former tenants are facing significant hurdles in terms of unlocking this remedy.

To date, there have been 21 applications for a WTO. Only three have been successful (resulting in penalty awards against the former landlord of three times the monthly rent in two cases, and one times the monthly rent in the other). Those cases are highlighted in the article, but of more interest are the WTOs that got away. The reasons for the eighteen unsuccessful applications are discussed in the article in some detail. A quick overview is provided here.

Some applications may have been procedurally unsound and as such there is not too much to say about those. There is a separate access to justice point about whether legal aid thresholds are such that applicants are not able to access professional support to frame and present their applications properly. I’ll gloss over that here.

Some applications have failed because the tribunal was happy enough with the landlord’s explanation of what happened (for example, a family member had been planning to move in but that did not happen after all), and again there is not so much that can be said about those cases.

That leaves the cases where former tenants have not been able to obtain a WTO because the former landlord did not serve papers that amounted to a formal notice to leave in terms of the 2016 Act. The tribunal has been fastidious in requiring this, because this is, apparently, what the legislation says. The effect of this interpretation is to deny WTOs to tenants who have been sent emails, text messages or WhatsApp messages instead of proper notices to leave and acted on those representations rather than await more formal correspondence. For reasons explained in the paper, Peter and I think this is unfortunate.

Lastly, the paper also notes the interaction of wrongful-termination orders and the older route to damages for unlawful eviction of a residential occupier under the Housing (Scotland) Act 1988. We think this requires consideration, to ensure those who have been faced with dubious conduct by a former landlord do not fall between the cracks.

And this is where I stop blogging and direct you to some other resources on the matter. One of these resources is an episode of the PropertyCon Podcast, the other is the article itself.

Starting with the podcast episode, Professor Bram Akkermans of Maastricht University has recently started a podcast called PropertyCon. Episode 6 of the PropertyCon Podcast sees him interviewing yours truly.

He has some “Podcast Notes” about the episode, as “snipped” below. I also offer some additional resources that I mention in the podcast below for reference.

The article itself can be found at page 88 of the 2021 Juridical Review. For those unable to access the piece on Westlaw or through Thomson Reuters’ Proview service, there is a short embargo period before I can make an open access version available. That being said, if any of you would like a copy, please drop me a line at malcolm.combe@strath.ac.uk.

Finally, if any of you hear of any cases or situations where a WTO has been raised as a possibility, please do drop me a line. My hope this article serves as the start of a discussion, and perhaps even presages a refinement of the approach that has been adopted to date.

Oh, and the title of this blog post? It’s a play on the whole “Let’s go [World Trade Organization]!” that was a bit of a Brexit mantra for some. I wanted that in the title for the article but Peter suggested, politely, that this was a bit naff. He was probably right, although we might have gathered some accidental and confused readers who were expecting an article on international trade law. We went for a much more functional title instead, namely: “A review of the first wrongful-termination orders made under the Private Housing (Tenancies) (Scotland) Act 2016: do they sufficiently protect those misled into giving up a tenancy?” Perhaps not the catchiest, but we hope it is effective.

Podcast Notes

Here are some resources I mentioned in the podcast episode.

This was the book launch for Combe, Glass and Tindley (eds) Land Reform in Scotland: History, Law and Policy (2020): https://www.youtube.com/watch?v=JXcqFOfExsY 

This is Jim Hunter’s book on the Sutherland clearances: https://birlinn.co.uk/product/set-adrift-upon-the-world/ 

This is the Residential Tenancies: Private and Social Renting in Scotland book by Robson and Combe (2019): https://www.sweetandmaxwell.co.uk/Product/Landlord-and-Tenant/Residential-Tenancies/Hardback/30799755 

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New Scottish Land Fund Committee

A bit of news. The membership of the new committee of the Scottish Land Fund has recently been announced, as detailed on the blog of the National Lottery Community Fund Scotland. Someone called Malcolm Combe is one of the seven committee members.

It goes without saying that I can’t say too much about this appointment at this particular juncture, mainly because I don’t yet know exactly what the role entails. All I can say for now is that I am very much looking forward to getting involved and playing my part in this important source of support for communities across the whole of Scotland.

I also suspect I won’t be able to say too much about the role going forward, owing to confidentiality issues, collective responsibility, standards in public life, and so on. I hope this won’t make me a boring so and so but there it is. I’ll still blog with impunity on matters which don’t impinge on the Scottish Land Fund as and when a relevant moment arises.

If anyone has any questions about the Scottish Land Fund, I suppose I had better direct you to its website.

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The Scottish Books Long Weekend: “What Next for Scotland at Home and Abroad? Talking Politics with Ruth Wishart and Guests”

Hello, everyone. I used to blog a bit. It seems I’ve hit a bit of a fallow period. Sorry about that (or, alternatively, please enjoy the respite).

Anyway, here’s a quick and opportunistic return to blogging to say nothing more than this: I will be participating in free, online event at The Scottish Books Long Weekend, entitled “What Next for Scotland at Home and Abroad? Talking Politics with Ruth Wishart and Guests”. I am a guest, and I will be desperately trying to prevent my imposter syndrome from shining through as I am joined by the other guests Angie Zelter, Stephen Gethins and Annie Tindley. I wangled my way onto this panel as Annie and I co-edited a book called Land Reform in Scotland: History, Law and Policy (with Jayne Glass – who we haven’t fallen out with, honest – but she cannot make this particular event).

You can book tickets for the event on the TicketTailor website.

Scottish Books Long Weekend
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Tenancy deposit and letting agency analysis for the Strathclyde Law Blog

I have two new blog posts on the Strathclyde Law Blog, considering aspects of residential tenancy law in Scotland. The first post is about the tenancy deposit protection scheme. The second post also relates to that legal regime whilst also taking in aspects of letting agent regulation.

For information, just in case you are interested in the birth of blog posts, the posts began life as a single post. The conclusion to my initial draft grew arms and legs somewhat, and after I passed that megapost to my good friend and residential tenancy guru Peter Robson for a proof read he suggested that I split it into two. I think he was right to do so.

As for the content of the posts, I’m happy to let those posts speak for themselves and leave this base drone largely as a sign post to them. I will however offer a soupçon of extra detail here, in relation to something I allude to in the second post. There, I nod to a passing involvement with the matter under discussion. I can confirm that I was one of the favours called upon (as noted in paragraph 39 of the decision), such that I offered the applicant (or rather the applicant’s brother, who I know personally) some assurance that a) he would not “be out of pocket for making the Deposit Application under the 2011 Regulations” and b) an award of expenses would almost certainly not be made against him. I was also quietly chuffed to have been (I think) the person who provided the spark for the second application to the First-tier Tribunal (Housing and Property Chamber) to be made, as it was me who flagged the very real possibility of a claim being made against the letting agent for its somewhat forthright reaction to the deposit-related application to the FtT. That forthright reaction cost the letting agent £250.

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Landscapes Podcast

Eleven months into lockdown, it’s finally happened: I started podcasting. Or rather, the resourceful, smart and all-round-good-guy Adam Calo (a postdoctoral researcher at the James Hutton Institute in Aberdeen) started podcasting. He decided I would make a decent guest for the inaugural episode of the Landscapes podcast. This meant he had a hefty task of trying to corral my land reform thoughts, not to mention editing out the worst of my verbal ticks, as I spoke about the Scottish scene before eventually homing in on an article that John Lovett and I wrote for the Montana Law Review that considered Scotland’s first urban community buyout. Anyway, I think he’s done a great job, and I hope my own ramblings are of interest. You can find out more at the relevant website and you can listen “wherever you get your podcasts” (here are the links to Apple and Spotify).

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“Combining community empowerment and clinical legal education: the Scottish University Land Unit”, an article for the Australian Journal of Clinical Education

This is a short, self-promotional blog [sign]post, which serves to direct readers to a new article that was published today in the Australian Journal of Clinical Education. The online, open access article can be found here.

I confess, this was not a place I was expecting to have my work published. To explain how this came to pass, just about three years ago I uploaded quite a long blog post about the Scottish University Land Unit. Through the power of Twitter, someone involved in the aforementioned online journal clocked the blog post and asked me if I would be interested in submitting an article on the topic. My answer was not “no”, but it was “not yet”. For reasons explained in the article, a couple of years later I returned to the project, and with thanks to the aforementioned power of Twitter, the team at the AJCE, and the various people I mention in the acknowledgements, there is now a publication I can [electronically] wave at people.

Here is the abstract of the paper:

For two years an initiative called the Scottish University Land Unit has partnered volunteer law students with an existing support agency that brings law students (with academic support) together with communities in Scotland seeking empowerment opportunities through access to local land or buildings. Drawing on the information and experience garnered over that period of operation, this paper will offer some reflections on the early life of the Scottish University Land Unit – or SULU – and also highlight the scheme to an international audience. It does this by giving an overview of existing scholarship and highlights the potential clinical benefits a student who engages with clinical legal education might gain, before giving an overview of the contemporary context and law relating to community empowerment and land reform in Scotland. Next, it will detail how SULU brings together the complementary goals of student development and serving the community. Lastly, this paper will conclude with a discussion on the future of SULU, and by offering some insights that may inspire similar schemes in different sectors or jurisdictions.

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Responsible access to the outdoors in Scotland in a time of crisis redux

Today the text of some new public health regulations for Mainland Scotland (and some islands) was unveiled (available online here). Those regulations amend existing rules and as such can be quite tricky to navigate, so a tip of the hat to Scott Wortley who quickly incorporated the amending legislation into the relevant rules (here), and an equally appreciative tip of the hat to the team at legislation.gov.uk who have already incorporated the new rules into that website (for example, in relation to enforcement, the new subsections (7A) and (7B) can already be found here). The law actually changes tomorrow (5 January).

This blog post is about public access to land. Here is my usual disclaimer to the effect that I appreciate there are many much more important topics out there to many people, but this is me sticking to relatively secure ground for me. Also, and despite that disclaimer, getting out and about might just be mighty important for physical and mental wellbeing with all the shit that is going on at the moment.

At the beginning of Lockdown 1 there was a lot of chatter and some misunderstanding about the rules relating to access to land. I blogged about that here. The chatter about responsible access to land continued into the summer notwithstanding – or indeed because of – the rules easing a little (see here).

The new regulations promulgated today take us nearer to Lockdown 1, so it is actually my earlier post that is more pertinent to the situation now. In this short post I will explain the new but familiar situation. I also acknowledge another law change that is relevant to public access to land that I did not mention at the time it was brought into effect. That change maybe did not merit a blog post in its own right but I suppose it is worth mentioning whilst I am blogging anyway.

Taking the new change in law first, most people in Scotland now need to stay at home, unless they are in possession of a reasonable excuse to leave the place where they are living. If you are not at home when you should be, a constable might well encourage you to get home (in terms of an amended regulation 4 of the main regulations).

The reasonable excuse that is of most relevance to this post is that you can go outside for permitted exercise or recreation. (The clear inclusion of recreation as an excuse is more forgiving than the Lockdown 1 regulations as originally drafted, which focussed on exercise.) To fall within the recognised exception, such exercise or recreation must measure up to certain standards. First, it must start and end at same place. Next, that place must be: i) in the local government (council) area in which the person lives; or ii) within 5 miles of such local government area. Who you are exercising or spending leisure time with should also be considered. Solo exercise is fine, as is exercise with one adult from another household. Groups with more than two adults would only be allowed where those adults are from the same [possibly extended] household and on a shared (permitted) excursion. There is no stipulation that your daily outdoor exercise or recreation has to occur in a single expedition.

Does this affect the overall legal regime relating to public access to land? In short, no. The underlying law (including Part 1 of the Land Reform (Scotland) Act 2003) remains in operation. Land that is not excluded from the right of responsible access can still be used for permitted recreation. A public right of way can still be traversed for permitted exercise.

That deals with the new rules. Now might be a good time to mention that earlier reform I mentioned, which was brought into force in August 2020 by way of The Health Protection (Coronavirus, Restrictions) (Directions by Local Authorities) (Scotland) Regulations 2020.

I confess I did not pay much attention to these regulations at the time, but a more attentive soul (you know who you are – thanks) flagged regulations 7 and 8 to me late last year. These allow for some quite striking changes to the regulation of public access to land in specific circumstances at the instigation of the relevant council.

Subject to a general restraint that local authorities will only act under the regulations when the relevant council considers that would be necessary to control the incidence or spread of infection by coronavirus in the local authority’s area and where acting is proportionate (in terms of regulation 3), regulation 7 provides that a local authority “may give a direction imposing prohibitions, requirements or restrictions in relation to access to a specified public outdoor place in its area.” The full text of regulation 7 (and regulation 8) is provided below. As for regulation 8, it is interesting in terms of limiting access, in a way that would actually stop the right of responsible access applying. Where regulation 8 applies, it would disapply the right to roam automatically through the operation of section 6(1)(d) of the 2003 Act (which subordinates the right of responsible access to other statutory restrictions). Regulation 8 is also interesting in that it enjoins the occupier, owner or manager of the affected land “to take all reasonable steps to prevent or restrict public access to that land in accordance with the direction.” Admittedly this is not an unqualified obligation, but it is noteworthy. I don’t remember reading too much about this at the time the regulations landed and I would be keen to hear from anyone affected. As to whether the powers have been deployed, I am not particularly aware if they have, and again I would be keen to hear from anyone affected. Comments are open, or feel free to drop me a private line by way of a Twitter DM or an email to malcolm.combe@strath.ac.uk.

In the meantime, if you are heading out and about, please do so safely and within the parameters of the rules. I can but hope I won’t be blogging about things like this for much longer.

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My 2020 in review

Another year, meaning it is time for yet another reflective blog post.

Readers of my blog will know that I have uploaded a short post at the end of my blogging year since 2013. Each of these posts sees me trying to find a nice but not glib way to offer some thoughts for the year, merging that with analysis of my most read posts from that year. Here I go again.

2020, eh? Not much to comment on at all really. Of course, as I predicted in one of my earlier blog posts, there was always a risk of a coronavirus sweeping the globe. Yes, this is a Dominic Cummings joke; and no, I have not retrospectively amended a blog post to make me seem like a soothsaying superbrain.

It is fair to say 2020 did not go the way I had imagined it might. At this point I should acknowledge that I have probably had a relatively good pandemic. I have not had to put myself in the frontline whilst doing the dayjob, or needed to home-school small humans whilst trying to keep doing that dayjob. I’ve been lucky enough to stay healthy. I’ve endeavoured to keep my nose clean and out of mischief and I think I’ve managed to do that. Fingers crossed that this continues into the new year.

On a vocational level, I was pretty lucky that I had a few months of normality to ease myself into a new job. I was able to meet new colleagues and students in person, before I assumed my new online persona of Malcolm Zoom. Sure, I had to convert teaching materials to remote learning at relatively breakneck speed when lockdown locked, but I was (in the main) able to do this safely from home. I’d like to think I just about managed to do this, and at the very least I can again count myself lucky that I have managed to still be in gainful employment at the end of a year that has been challenging for many. Thanks to everyone (colleagues, students, friends) for their forbearance as I muddled my way through this.

Should I say anything about politics? Probably not, I’ll just get annoyed. Mind you, I still seem to be tapping my keyboard, so here I go again.

I’ve made the statutory Dominic Cummings reference already. It would be fair to say there have been aspects of the governance of this country I have had issues with this year, be that pandemic- or Brexit-related, or just general stuff that happens anyway (although there was a bumper crop of new House of Lords legislators in 2020: spiffing). As for Brexit, the relevant bill to seal our deal with the EU was passed at Westminster yesterday, so my keyboard tapping today is hardly relevant. It really does stick in the craw though that Scotland voted 62% to Remain and yet we remain yoked to a Brexit project that doesn’t even resemble the prospectus that a fair chunk of the Leave voters thought they were voting for. Oh well. At least us Brits now control all our fish… Wait, what do you mean we don’t control all “our” fish?

And breathe.

And now, some eclectic personal reflections, if that is the right word. Before the annual number-crunch of my blog, I tend to offer a few wee points about other output for the year, as much to keep me right as anything else. I pray your indulgence as I do that.

At the start of the year, I had a note about legal education reform and law clinics in the IJCLE. The Deer Working Group that I was an External Adviser to published its Report. My most important academic output was probably my co-authored piece on access to justice with Ben Christman in the Edinburgh Law Review (related opinion piece from an article in the Journal of the Law Society of Scotland here). I also had a note in the Journal of the Law Society of Scotland on land reform stuff. Finally, my co-edited book (with Jayne Glass and Annie Tindley) on Scottish land reform came out. You can read/watch a bit more about that here.

STAT ATTACK

My top five base drones of 2020 (excluding the blog’s churning home page and any posts from earlier years) were as follows:

In 1st place, a post about responsible access to the outdoors in a pandemic. [A related post about access in a lockdown intermission also reached my top five, but I will skim over that for the purposes of my ranking system.]

In 2nd place, a post about a defamation case, which before I started writing this reflective post I could have sworn was actually from several years ago.

In 3rd place, a post about crofting law. A more polished version of that post was later published in the Scots Law Times (News).

In 4th place, a post about land registration and the pandemic.

In 5th place, a post about short-term letting, which actually didn’t say very much but there it is.

Honourable mentions might also go to my posts about landlord and tenant law reform (the main post being on the new Strathclyde Law Blog, and hence not included in my stats) and a wee post I wrote about the book His Bloody Project.

What next?

My main task in 2021 will be navigating what is left of this pandemic. After that, at a professional level I will then be thinking about changes in practice etc. that are actually worth retaining post-pandemic, as there is no denying that this great disruption has also brought innovation.

As for anything else, a pal asked me recently if I had any resolutions for the new year. Having failed to provide a decent answer at the time, I now think my resolution is to use my time keeping out of mischief to read a bit more for pleasure. 2020 lockdown living gave me a chance to read some stuff but I am not sure I fully embraced the opportunity. I will try a bit harder in 2021.

Thanks for reading. All the best for 2021. I’m sure that message will make all the difference. I said “All the best for 2020” last year and it all worked out.

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A discussion with the editors of Land Reform in Scotland: History, Law and Policy (on YouTube)

In November, Jayne Glass, Annie Tindley and I were involved in an online discussion about our co-edited EUP book, Land Reform in Scotland: History, Law and Policy (as detailed on this blog here).

The session was conducted via Zoom. After a brief intro from me, the three of us then offered some thoughts on the content of the book relating to “our” disciplines, then there was some discussion in response to questions from the audience; thanks again to everyone who tuned in and participated. We were also able to record the event. It took a little while to sort accurate captions (as I think every academic with a regional British accent has discovered in this year of online teaching). Having now done so, the recording is available on a University of Strathclyde YouTube channel. Here it is.

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A discussion with the editors of Land Reform in Scotland: History, Law and Policy (online, on 25 November)

Earlier in 2020 a book entitled Land Reform in Scotland: History, Law and Policy edited by Jayne Glass, Annie Tindley and yours truly was published by Edinburgh University Press, as part of its “Scotland’s Land” series.

I wrote about this in a blog post. That post landed in those heady, pre-lockdown days when it was possible to do things like imagine actually having a launch event. The conclusion in that post was suitably couched, for fear that far more important public health matters might get in the way of such niceties. This is indeed what transpired, as our planned debut at the Edinburgh International Book Festival disappeared into the [social] distance.

The editors still wanted to do something at an appropriate moment though, and as such (with the support of Edinburgh University Press and the University of Strathclyde’s Zoom wizardry) Jayne, Annie and I are hosting a webinar on 25 November at 13.00 when we will be talking about the how the book came to be, its contributors and contributions, and whatever else crops up through the Q&A. Details can be found here. It would be lovely to “see” you there.

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