In a recent decision the FTT refused to grant an eviction order despite the tenant having failed to defend the action, pay full rent for over a year, respond to the landlord or make payment proposals.
This decision was overturned on appeal by the Upper Tribunal with Sherif Reid finding that the FTT had “fallen into error in multiple respects” in its application of the reasonableness test (Decision (Application) [AP]).
This article focuses on one particular area of the FTT’s decision where it concluded that in low value arrears cases eviction, should be an action of last resort.
In this case, the tenant was unable to meet her full rent charge and was consistently short by £125 per month. The FTT placed negative weight on the landlord’s failure to pursue other remedies available, such as payment actions against the tenant or the guarantor.
Is a landlord required to consider other remedies before pursuing eviction for rent arrears?
The FTT appears to have taken the wrong approach by asking if other remedies are more reasonable. The UT disagreed with the FTT’s proposition, holding “There is no such rule of law. Hypothetically speaking, it is conceivable, perhaps, that proven rent arrears, though sufficient to establish the statutory ground for eviction, may be at such a de minimis level as to justify a conclusion that it is not reasonable to grant an eviction order. But this is certainly not such a case.”
As noted by Sheriff Braid in a social housing eviction case, the question is not “whether eviction is the most reasonable course or one of several equally reasonable but conflicting courses….. A reasonable course of action does not cease to be reasonable simply because there are other actions which might be equally, or more, reasonable” (para 72, East Lothian Council v Duffy 2012 SLT (Sh Ct) 113.
Accordingly, while alternative options may be available to landlords, pursuing arrears is not a prerequisite to eviction. The question for the FTT remains is eviction reasonable, which depends on the facts and circumstances of the individual case.
For more information or advice contact our PRS experts – prs@tcyoung.co.uk
