An Introduction to Tenancy

Law in Scotland

Jim Bauld, Partner

TC Young Solicitors

What is a Tenancy?

“an agreement between two parties referred to

as the landlord and the tenant respectively,

whereby the landlord gives the tenant the right

to occupy premises in exchange for a periodic

payment known as rent”

Form of Lease

• Essential elements required to create a lease:-

- parties

- subjects

- duration (tacit relocation)

- rent

• Should be in writing but may not be a legal

requirement to create a tenancy!

• Signed by landlord and tenant and witnessed by third

party

Unfair Contract Terms

• The Unfair Terms in Consumer Contracts

Regulations 1995

• Apply to tenancy agreements

• A term that causes a significant imbalance in the

parties' rights and obligations under the contract will

be deemed unfair

• Unfair contract term will not be enforceable but rest of

lease will still stand

Types of Tenancies

• Scottish Secure Tenancies

• Assured Tenancies

• Common Law Tenancies

Scottish Secure Tenancies

• Introduced by Housing (Scotland) Act 2001

• Aimed at providing security of tenure with

enhanced rights for tenants

• In general, all RSL tenancies converted to

SSTs as of 30 September 2002

Scottish Secure Tenancies

• House let as separate dwelling

• Tenant is an individual and house is only or principal

home

• Landlord is local authority/RSL/water or sewage

authority

• Tenant can apply for others to be added as joint

tenants – no restrictions on numbers!

Exceptions to SSTs

• Premises occupied under a contract of employment.

• Police and fire service accommodation.

• Lettings to students

• Decants

• Temporary letting to a homeless person

• Tenancies under shared ownership agreements (defined in section 83).

• Agricultural and business premises.

• Houses forming part of buildings used for non-accommodation

purposes.

• Houses leased by the landlord from someone else where the terms of

the lease preclude letting under a Scottish secure tenancy.

Scottish Secure Tenancies

Tenants rights:-

• Written Tenancy Agreement

• Repairs

• Compensation for Improvements

• Assignation/Subletting/Exchanges

Statutory rights vs Contractual rights

Termination of a Scottish

Secure Tenancy

The Housing (Scotland) Act 2001 sets out the

various ways in which a landlord can legally

terminate a Scottish Secure Tenancy

Termination of SSTs • by an eviction order

• abandonment

• tenant dies and no qualified successor,

• conversion of SST to short SST,

• by written agreement between the landlord and the

tenant, or

• by 4 weeks' notice given by the tenant to the landlord.

Notice of Proceedings

Prior to court action must serve tenant and

qualifying occupiers with a Notice of

Proceedings in terms of section 14 of the

2001 Act

New forms of NOP from 1st August 2012 for

Rent Arrears actions and Non Rent Arrears

actions following intro of PARS

Notice of Proceedings

• Must be served on tenant and any qualifying

occupier

• Proceedings can only be raised after date

specified in notice

• Notice must be in force at time of raising

Court proceedings

Notice of Proceedings

Should you accompany the Notice with a letter?

- No legal requirement to do so

- Have to be very careful with wording

- May have consequences at court

Format of Notice

• Must use correct format of Notice as set by

statutory instrument

• Must set out ground(s) for repossession as

stated in schedule 2 of the Housing

(Scotland) Act 2001

• Must give full reasoning in support of ground

Date in Notice of Proceedings

• Date after which court proceedings can be

raised

• 4 weeks from the date of service of the notice

or…

• The ish date of the tenancy…..whichever is

later

Reasonableness

• required to establish for all grounds of

repossesion

• must satisfy the court regardless of whether the

action is defended

• court will expect rsl to have given every

opportunity to cure the breach of the tenancy

Information Required by the Court

• financial circumstances

• housing benefit position

• arrears direct position

• steps taken to contact tenant

• family composition

• liaison with other authorities

• does the tenant know?

By operation of section 18(2)

Abandonment

If Landlord must have REASONABLE grounds

for believing that;

(a) The house is unoccupied

(b) The tenant does not intend to occupy it as

the tenant’s home

Abandonment

First notice served must;

• state that the landlord has reason to believe that the

house is unoccupied and that the tenant does not

intend to occupy it as the tenant's home,

• require the tenant to inform the landlord in writing

within 4 weeks of service of the notice if the tenant

intends to occupy the house as the tenant's home,

and

• inform the tenant that, if it appears to the landlord at

the end of that period that the tenant does not intend

so to occupy the house, the tenancy will be

terminated with immediate effect.

Abandonment

If within 4 weeks of service of the first notice there

is no contact, the landlord can serve a second

notice bring tenancy to an end with IMMEDIATE

EFFECT.

“WITHIN 4 WEEKS” – definition?

Succession

The death of a tenant terminates an SST unless there is a QUALIFIED PERSON to succeed to the tenancy

Who is a qualified person?

Succession 3 CATEGORIES:

• -(i) Spouse, civil partner or co-habiting partner of

either sex or the remaining joint tenant

• (ii) Members of the tenant’s family providing they are

aged at least 16 years and that the house was their

only or principal home at the time of the tenant’s

death

• (iii) A carer aged at least 16 years where the house

was their only or principal home at the time of the

tenant’s death and where they gave up their only or

principal home to care for the tenant or a member of

the tenant’s family

Succession

- If more than one qualifying person, they can

decide who to succeed, failing which the

landlord decides

- If no qualified person, tenancy is terminated

as at date of death

- Only TWO rounds of succession - after

second round, tenancy terminates

Succession

Specially adapted accommodation:

- Qualifying person cannot succeed to specially

adapted accommodation

- Landlord must make “suitable alternative

accommodation” available

- Schedule 2 of 2001 Act details procedure for

offering alternative accommodation

Conversion to Short SST

A landlord can convert a tenant’s existing

Scottish Secure Tenancy to a short

Scottish Secure Tenancy if the tenant or a

person residing with the tenant becomes

subject to an antisocial behaviour order.

Conversion to Short SST

– Notice on tenant

– Full SST to Short SST

– Doesn’t apply to interim ASBOS

– Support required

– Right to appeal (S35(5))

Granting Short SSTs

Seven grounds set out in Schedule 6 of 2001 Act

include:

- Previous order for eviction for asb

- Tenant or household member subject to ASBO

- Temporary letting for person seeking accommodation

- Temporary letting pending development

- Temporary letting for homeless person

- Temporary letting for person requiring housing

support

- Property not owned by landlord

Granting Short SSTs

• Notice under section 34 must be served

prior to signing tenancy agreement

• Term of tenancy must be at least 6

months

Terminating a Short SST

Procedure for compulsory repossession

– Notice to Quit

– S36(3) Notice (The Short Scottish Secure

Tenancies (Proceedings for Possession)

Regulations 2002)

Terminating a Short SST

- May be possible to terminate prior to

ish

- Depends on wording of tenancy agreement

- May require to irritate lease

- Complex procedure

By Written Agreement

Landlord and tenant can agree in writing to

terminate the tenancy.

The tenancy will be terminated on the agreed

date. No period of notice required.

By 4 Weeks Notice Given by

Tenant to Landlord

- Notice must be in writing – implied by 2001

Act

- Tenant can revoke notice during four week

period

- To protect position, sign acceptance on

tenant’s termination to create “written

agreement”

REPAIRS DUTY (SSTs)

Housing (Scotland) Act 2001 schedule 4

landlord’s duty to ensure at start of tenancy

that house is

“wind and watertight and in all other

respects reasonably fit for human

habitation”

Paragraph 1(a)

STATUTORY DUTY

Housing (Scotland) Act 201..schedule 4

Duty to keep house wind and watertight and

reasonably fit for human habitation

continues....

“throughout the tenancy”

Paragraph 1(b)

PRE-TENANCY INSPECTION

Landlord must before commencement of

tenancy

• Inspect the house

• Identify any work needed to comply with

“reasonable fitness” duty

• Notify tenant of that work

Schedule 4, paragraph 2

REPAIRS DUTIES

Repair work must be done

“within a reasonable time”

and includes

“duty to make good any damage caused by

carrying out the work”

Schedule 4, paragraph 3

Assured Tenancies

• Introduced by the Housing (Scotland) Act

1988

What is an Assured Tenancy?

• house is let as a separate dwelling

• the tenant is an individual

• the tenant occupies the house as his only

or principal home

S.11, 12 and 13 of 1988 Act

Exceptions

• Tenancies with low or no rent

• Tenancies of shops

• licensed premises

• Certain agricultural land/holdings

• Lettings to students by educational institutions

• Holiday lets

• Resident landlords

• SSTs and shared ownership

Landlords’ Duties

• Landlord Registration

• provide written Tenancy Agreement

• provide Tenant Information Pack

• meet “Repairing Standard”

• Tenancy Deposit Scheme

• must not charge unlawful premiums

Short Assured Tenancies

What is a Short Assured Tenancy?:

• A type of assured tenancy

• Minimum of 6 months

• AT5 served prior to signing agreement

• Intended to provide landlord increased

rights of repossession

Termination of tenancy

• Must terminate tenancy at the end date by

serving Notice to Quit

• Must include prescribed information

• Must be served by recorded delivery or

Sheriff Officers

The Notice to Quit

The End(or “ish”) Date

- Doctrine of tacit relocation in Scotland

- If tenancy not brought to an end after

initial term, will continue on same terms

as before

- May be provision in agreement for tenancy

to continue on a monthly/bi-monthly basis

- If not, tenancy will roll over for same term

as before, e.g. 6 months

The Notice to Quit

General rule for period of notice

Tenancy less than 6 months – 28 days

Tenancy more than 6 months – 40 days

Common Law Tenancies

• Anything that’s not an Assured Tenancy/SST!

• Occupancy Agreements

• Service Occupancies

• Occupants Rights – Repairs, occupation, etc

• No security of tenure – termination by Notice

to Quit

Repairs…private sector

Housing (Scotland ) Act 2006

Sections 12 to20

“The repairing standard”

Private Rented Housing

Committee

determines whether landlord has

“complied” with repair duty.

if not…issue “repairing standard

enforcement order”

Repairing Standard

Enforcement Order

Specifies

• Works required

• Period for completion

• Any other steps required

PHRC can vary or revoke orders at any time

Failure to Comply with RSEO

PHRC must

• Serve notice on local authority

• Decide whether to make “rent relief order”

• Failure to comply is criminal offence

• Entering new tenancy while RSEO in place is also criminal offence

Enforcing Tenancy Obligations

• Where tenant in breach of contract,

landlord can take action

• Warning letter

• Action for implement/interdict/damages

Enforcing Tenancy Obligations

Examples:-

(1)Tenant has dog in property without obtaining

permission. Dog causing nuisance to neighbours.

(2)Tenant is refusing to allow access for an inspection

of the property to be carried out