1. The purpose of this guidance is to explain the details of the new tenancy, the Scottish secure tenancy (SST), and the short Scottish secure tenancy (short SST), which are provided for in the Housing (Scotland) Act 2001 ("the Act"). The new tenancy is intended primarily for tenants of local authorities and registered social landlords (RSLs) and will in virtually all cases (exceptions are described below) replace the existing secure and assured tenancies of such tenants. The SST and short SST will take effect in all parts of Scotland from 30 September 2002. Landlords should revise their policies and procedures to take account of the new provisions and this guidance.
2. Separate guidance is available on the right to buy and on the tenant participation provisions set out in Chapter 3 of Part 2 of the Act.
3. These notes do not provide guidance on tenancies in the private-sector - normally assured or short assured tenancies.
4. Landlords should bear in mind the requirements under section 106 of the Act that:
(1) Scottish Ministers and local authorities must exercise their functions under the Act in a manner which encourages equal opportunities and, in particular, the observance of the equal opportunity requirements.
(2) In providing housing accommodation and related services, registered social landlords must act in a manner which encourages equal opportunities and, in particular, the observance of the equal opportunity requirements.
5. Landlords must ensure that all tenants are treated equally irrespective of their sex, marital status, age, race, ethnic origin, sexual orientation, disability or religion. In implementing the SST landlords will need to make arrangements to ensure that they can, as appropriate, give information in different languages, Braille, large print, etc. All existing tenants should have access to information which tells them of the changes to their statutory rights and responsibilities.
6. This does not necessarily mean the production of lots of information in different formats, but it does mean that landlords should build in some assessment of the needs of different tenants and how the landlord can make information available to them e.g. through translation services, etc. It also means that where landlords assess that they do not need to make available information in different formats they should at least establish how they would go about doing so, if required. Landlords with significant numbers of tenants from a particular ethnic minority or disabled group should consider producing information in different formats.
Model Tenancy Agreements and Common Law
7. The 2001 Act gives Scottish Ministers a power to issue guidance as to the form and content of a tenancy agreement including, in particular, a model tenancy agreement. A model SST agreement was issued to all social landlords under cover of the Scottish Executive Development Department's letter of 26 October 2001. This model sets out the statutory rights for tenants in terms of the 2001 Act and embodies suggestions for additional contractual rights to be agreed between landlord and tenant. The model also sets out the position with regard to common law applicable to social sector tenancies in Scotland. We believe this model represents the basis for a sound tenancy agreement which will form a common standard for all Scottish secure tenancies and a baseline against which Communities Scotland can measure good practice. A model short SST Agreement has also been made available to all social landlords and both models can be found on the Scottish Executive web site: http://www.scotland.gov.uk/library3/housing/msst-00.asp. Whilst there is no statutory obligation on landlords to use the model tenancy agreements, we would encourage its use as the basis for all tenancy agreements. At the very least, we would expect landlords to reflect the spirit and substance of the legislation in any tenancy agreements. To allow landlords to draw up the tenancy agreements most suitable to local circumstances and to allow additional contractual elements to be added, where appropriate, to the mandatory statutory provisions set out in the Act, the models come complete with a disk version of the agreement.
8. Secondary legislation is required to fully implement some of the provisions of the Act relating to the SST and short SST. This is contained in Orders and Regulations which have been confirmed by the Scottish Parliament and are as follows:
The Housing (Scotland) Act 2001 (Commencement No. 5, Transitional Provisions and Savings) Order 2002
The Housing (Scotland) Act 2001 (Scottish Secure Tenancy etc.) Order 2002
The Scottish Secure Tenancies (Exceptions) Regulations 2002
The Scottish Secure Tenants (Proceedings for Possession) Regulations 2002
The Scottish Secure Tenants (Abandoned Property) Order 2002
The Scottish Secure Tenants (Compensation for Improvements) Regulations 2002
The Scottish Secure Tenants (Right to Repair) Regulations 2002
The Short Scottish Secure Tenancies (Proceeding for Possession) Regulations 2002
The Short Scottish Secure Tenancies (Notices) Regulations 2002.
The Scottish Secure Tenancy (SST)
9. A tenancy will only be an SST if:
- the house is let as a separate dwelling;
- the tenant is an individual and the house is the tenant's only or principal home;
- the landlord is a local authority landlord, a registered social landlord, or a water or sewerage authority;
- where the landlord is a RSL which is a co-operative housing association, the tenant is a member of the association; and
- the tenancy was created on or after such date as specified by order or before that date if of a description specified by order.
These basic criteria are discussed in paragraph 14.
N.B. Tenants of Scottish Homes will continue to be secure tenants in terms of the Housing (Scotland) Act 1987.
10. If a tenancy meets the above criteria then it is an SST and has all the rights, protections and obligations of the SST set out in the Act, regardless of what the tenancy agreement may say or be called by the landlord or tenant. Equally, any tenancy let as an SST by one of the bodies eligible to offer an SST must meet these criteria.
11. All existing secure and assured tenants of local authorities, RSLs, and water or sewerage authorities will convert to the SST with effect from 30 September 2002, by virtue of an order under section 11 of the 2001 Act. The interpretation of the terms of the Act is a legal matter which is ultimately for the courts. It is, however, the Executive's view that an existing tenancy does not end at the date of conversion to the SST, it simply changes its status at that date from a secure or assured tenancy to an SST; conversion is not a new tenancy.
Rent Arrears or Outstanding Debt on Conversion to the SST
12. As explained above, the interpretation of the terms of the Act is a legal matter which is ultimately for the courts. Further, the question of recoverability of rent arrears in any case will depend very much on the facts and circumstances of that case. However, given the Executive's view that the conversion of a tenancy to a Scottish secure tenancy does not end the previous tenancy, but merely alters the status of that tenancy, then it follows that if a secure or assured tenant is in arrears of rent or otherwise in breach of their tenancy agreement at the time of conversion to the SST, that tenant will continue to be liable for those arrears or for that breach of the tenancy agreement under the new SST.
13. Some tenancies may meet the general criteria for an SST set out at paragraph 14 but will nonetheless not be SSTs because of the exemptions set out in Schedule 1 of the Act. These exemptions are set out and discussed in paragraph 26.
14. Basic Criteria for an SST (section 11 of the Housing (Scotland) Act 2001)
14.1: the house must be let as a separate dwelling (section 11(1)(a))
"House" in this section includes a flat or any other part of a building which is occupied or intended to be occupied as a separate dwelling. "House" and "flat" are defined under section 111 of the Act. "Separate dwelling" is not defined in the Act or elsewhere in housing legislation but is generally taken to include accommodation which is reasonably self contained. The reference to "separate dwelling" mirrors section 44(1) (a) of the Housing (Scotland) Act 1987. There has been a considerable amount of case law in which the meaning of this provision of the 1987 Act has been examined. Basically, it means that, where the tenant shares an essential part of the living accommodation (e.g. livingroom or kitchen), the tenancy is excluded from the secure (and now Scottish secure tenancy regime).
14.2: the landlord must be either a local authority or a registered social landlord or a water or sewerage authority (section 11(1)(b))
Any house let by one of these bodies, which also meets the other criteria in this section, will be let under an SST unless there is a specific exemption in Schedule 1 to the Act or it is a short SST as defined in section 34 of the Act.
Local authority landlords include joint boards or committees and trusts controlled by a local authority (see section 11(3) of the Act).
This means that no other type of landlord can offer the SST. Private-sector landlords will continue to be able to offer assured or short assured tenancies under the terms of the Housing (Scotland) Act 1988 ("the 1988 Act").
14.3: the tenant must be an individual and the house must be the tenant's only or principal home (section 11(1)(c))
An SST can only be offered to an individual and cannot be offered to a company or organisation. This does not prevent a house being let to more than one individual - indeed, the Act provides a right to a joint tenancy (section 11(5) of the Act) so long as each tenant is an individual and the house is to be their only or principal home (section 11(7)). If a tenant breaks this condition, the landlord will be entitled to instigate proceedings for recovery of the property. If a joint tenant breaks this condition, the landlord will be entitled to instigate proceedings to bring that joint tenant's interest in the tenancy to an end under section 20 of the Act ( see paragraph 57 below ).
A house will still be a tenant's "only or principal home" where a tenant has to live away from home for periods of time, for example for employment or study reasons or because they are in hospital or in custody. The principal home would be the place the tenant returned to - what is, in effect, the "family home".
14.4: where the landlord is an RSL which is a co-operative housing association, the tenant must be a member of the association (section 11(1)(d))
The Act brings fully-mutual co-operative housing associations within the scope of the new Scottish secure tenancy. They, like other RSLs, must offer their tenants an SST, but any tenant must also be a member of the association. If a tenant gives up or is expelled from membership, this will be a breach of the tenancy agreement and the co-op will be entitled to instigate proceedings to recover possession of the property. Good practice would suggest, however, that landlords should have in place internal mechanisms for appeal in such cases.
14.5: the tenancy must either have been created after a date specified by Ministers or have been created before that date but be of a description specified by Ministers (section 11(1)(e))
An Order by Scottish Ministers introduces the SST and specifies for each landlord or description of landlord a date after which all new tenancies offered by those landlords must be SSTs (unless they are covered by one of the exemptions). This date is 30 September 2002. At that date, any existing tenancies of those landlords will convert to SSTs through the Order.
Protecting Existing Rights Under the SST (section 11 (2))
15. The above Order includes provisions to protect the rights of the tenant in relation to a tenancy which is converted to an SST. The "Scottish Secure Tenancy etc." Order 2002 protects the right to buy entitlement of those secure and assured tenants who have the right to buy before the introduction of the SST and further details on this are provided in the associated guidance on the modernised right to buy. Apart from protecting right to buy entitlement, the Order also protects the following rights:
15.1 The right of existing secure tenants of housing associations (now RSLs) to have a fair rent determined by the Rent Officer; and
15.2 The right of existing tenants of housing associations with statutory assured tenancies to refer their rent to the Rent Assessment Committee.
16. The Commencement Order associated with the above Order, which commences sections 11 to 51 of the Act and the repeal of earlier legislation, provides that the Secure Tenancies Compensation for Improvements (Scotland) Regulations 1994 will continue to apply in relation to claims for improvements by Scottish secure tenants where the qualifying improvement work was begun prior to the introduction of the Scottish secure tenancy. New Regulations under the 2001 Act will apply only in relation to improvements begun on or after 30 September 2002.
17. The Commencement Order also makes it clear that existing tenants subject to an anti-social behaviour order (ASBO) taken out before the introduction of the SST, cannot have their SST converted to a short SST (under the provisions of section 35 of the Act - see paragraph) by virtue of that ASBO.
18. Actions for recovery of possession by social landlords begun under former legislation, prior to the commencement date for the new SST, will continue to be valid and enforceable.
19. In any determination of succession rights begun under former legislation, prior to the commencement date for the new SST, the former legislation will apply.
Right to a Joint Tenancy (section 11(5))
20. As well as a right to a sole tenancy under an SST, any tenant is entitled to a joint tenancy with one or more individuals, so long as the house is, at the commencement of the joint tenancy, to be the only or principal home of all the tenants (section 11(5)). The tenant and prospective tenant(s) must apply in writing and where an application for a joint tenancy is made, the landlord must grant the joint tenancy unless it has reasonable grounds for not doing so. The Act does not seek to define what might count as "reasonable grounds" and landlords will need to decide for themselves where the particular circumstances are likely to justify what is clearly intended to be an exceptional course of action.
21. There is no limit to the number of occasions on which a joint tenancy can be created. Nor is there any limit to the number of joint tenants, subject to the maximum of tenancy limits for the property. The Act does not allow for a right of appeal for the tenant or prospective joint tenant in cases where the landlord has refused to grant the joint tenancy. Good practice would, however, suggest that landlords should have in place clear and well-publicised internal mechanisms for appeal in such cases.
Continuation of Tenancy (section 11(8))
22. Once a tenancy is an SST it will continue to be one even if it subsequently fails to meet some of the basic criteria: where (a) the landlord is no longer a local authority, a RSL or a water or sewerage authority, or (b) the house is no longer the only or principal home of the tenant, or (c) where the landlord is a RSL which is a co-operative housing association and the tenant is no longer a member of the association. This is without prejudice to the landlords powers under the Act to repossess the house.
23. These circumstances are unlikely to arise often in practice, but could occur through the de-registration of an RSL, or on exceptional transfer of local authority houses to a landlord outside of the social rented sector. Even if such a change takes place, the tenancy will continue to be an SST with all the associated rights, protections and obligations but any new tenancy would not be an SST.
24. This right does not cut across the right of the landlord to seek recovery of possession if one of the terms of the tenancy agreement is broken by the tenant and the provision is without prejudice to sections 14 and 16, and Schedule 2 to the Act. In practice, this means that if the house is no longer the only or principal home of one of the joint tenants, then the appropriate remedy is to recover possession of that joint tenant's interest in the tenancy under the abandonment by joint tenant procedures in section 20 of the Act. If a tenant of a fully mutual co-operative housing association gives up his or her membership, then the appropriate remedy is to recover possession of the tenancy.
Houses Under Temporary Occupation (section 11(9))
25. The tenancy rights of SST tenants who have been temporarily housed elsewhere are protected by section 11(9) of the Act. Where the house that the tenant normally occupies under an SST is not available for occupation and the tenant has been temporarily accommodated in another house, section 11 (9) provides that the other house is to be taken for the purposes of Chapter 1 of Part 2 of the Act except sections 12 - 16 and paragraph 4 of Schedule 1 to be the house which the tenant normally occupies. This means, in effect, that if tenants are moved on a temporary basis from their usual house they will continue to have the full rights of an SST in the temporary house except for the RTB. In this situation, landlords can simply recover possession of the alternative house as necessary and they are not required to use the normal procedures as set out in sections 12 to 16 (below).
Tenancies Which Are Not SSTs
26. Section 11(4) of the Act says that a tenancy is not an SST if it is of a kind mentioned in Schedule 1 to the Act. (This does not mean that it is a short SST as short SSTs cannot be offered unless under section 34 and Schedule 6 of the 2001 Act.) The exceptions, where a tenancy is not an SST or a short SST, will apply to new tenancies and to existing tenancies which would otherwise become Scottish secure tenancies under section 11 of the 2001 Act. These exemptions are:
- premises occupied under contract of employment - i.e. tied houses;
- tied properties of police and fire authorities;
- lettings to students by specified educational institutions of a type specified by regulations made by Scottish Ministers;
- temporary accommodation for occupation by a tenant while work is being carried out on the tenant's only or principal home and to which home the tenant is entitled to return after the work is completed (often referred to as "decant housing");
- temporary accommodation for homeless persons*;
- temporary accommodation granted for less than 6 months for the rehabilitation of ex-offenders* - this is accommodation let for up to 6 months which is designed to support the care and supervision by a local authority of persons subject to supervision by an order of court or, following release from prison, a license of Scottish Ministers;
(* This applies where the intention is that temporary accommodation should last for less than 6 months although this arrangement could be extended. Where temporary accommodation is being offered expressly for a period of 6 months or more a short SST would be appropriate.)
- tenancies under a shared ownership agreement;
- agricultural and business premises - where the house is let together with agricultural land of more than 2 acres; consists of or includes premises which are used as a shop or office for business, trade or professional purposes; consists of or includes premises licensed for the sale of excisable liquor or is let in conjunction with any of these;
- if the house forms part of, or is within the curtilage of, a building which is let by the landlord for purposes other than the provision of housing accommodation, and mainly consists of accommodation other than housing accommodation. An example would be a janitor's house lying within the boundaries of a school or college; and
- if the house is leased by the landlord from another body and the terms of the lease preclude the landlord from letting the house under an SST.
Restriction on Termination of Tenancy (section 12)
27. Section 12(1) of the Act provides that an SST can only be ended in one of the following 6 ways:
- by an order giving the landlord the right to recover possession following court action linked to the specified grounds for recovery set out in Schedule 2 of the Act;
- by action by the landlord as a result of abandonment of the house by the tenant;
- the death of the tenant where the statutory requirements for succession are not met;
- where the tenant or a member of the tenant's household is the subject of an Anti-Social Behaviour Order (ASBO), and the landlord takes action to convert it to a short SST under section 35 of the 2001 Act ( see paragraph 127 );
- by written agreement between the landlord and the tenant;
- by 4 weeks' notice by the tenant - N.B. Under the Matrimonial Homes (Family Protection) (Scotland) Act 1981, the consent of any "non-entitled spouse" is also required.
28. Section 12(2) and section 12(3) provide that where a tenant is temporarily in another house where the landlord is a social landlord, either by agreement or by an order of the court under section 16(2) of the Act, the landlord cannot bring the tenant's occupation of that other house to an end before the house the tenant normally occupies is available for occupation unless the SST has been brought to an end.
Termination of Joint Tenant's Interest in Tenancy (section 13)
29. Section 13 of the Act provides that a joint tenant may terminate his or her interest in the tenancy by giving 4 weeks' notice in writing to the landlord and each of the other joint tenants. Under the Matrimonial Homes (Family Protection) (Scotland) Act 1981, the consent of the "non-entitled spouse" of any joint tenant relinquishing a tenancy would also be required. This would apply where the non-entitled spouse was not a joint tenant. An example might be where two brothers were joint tenants but one brother had a partner who was not a joint tenant. On receiving notification from a joint tenant that he or she wishes to terminate his or her interest in the tenancy, the landlord should seek verification that proper notice has also been served by that joint tenant on the other joint tenant(s).
30. There are procedures for terminating one or more of the joint tenants' interests in the tenancy if the landlord has reasonable grounds for believing that the joint tenant is not occupying the house and does not intend to (see section 20 of the Act and paragraph 56 below ).
Proceedings for Possession (section 14)
31. Section 14(1) of the Act entitles a landlord under an SST to seek a court order for recovery of possession of a house. Subsections (2) to (5) set out the procedures which the landlord must follow in such circumstances, and include a power for Scottish Ministers to prescribe the form of notice to tenants. These proceedings will already be familiar to local authorities under the secure tenancy regime but will be new to RSLs. RSLs should note that Notice of Proceedings, served by the landlord, is the mechanism to be used in all cases and that Notice to Quit will not be required. Landlords should also note that any proceedings for possession, begun under sections 48 and 51 and Schedule 3 of the Housing (Scotland) Act 1987 or section 18 and Schedule 5 of the Housing (Scotland) Act 1988, before 30 September 2002 and any Notices served in relation to those proceedings will continue to be considered under those sections of the 1987 and 1988 Acts by virtue of transitional arrangements made by Order of the Scottish Parliament.
32. Subsection (2) precludes the landlord from raising proceedings for recovery of possession of the house unless the landlord has:
- served on the tenant and any qualifying occupier a notice in a form prescribed by Scottish Ministers (the notice to be served on the qualifying occupier is exactly the same as that to be served on the tenant);
- the proceedings are raised on or after the date specified in the notice; and
- the notice is in force at the time when the proceedings are raised.
33. Where there are joint tenants, the names of all the joint tenants should appear on the notice as joint tenants are jointly and severally liable. Only one notice is required to be served on the joint tenants provided it is addressed to all of them. Should a landlord consider that it is more appropriate to serve a copy of the same notice on all of the individuals, there is nothing in the legislation to prevent this course of action. It is entirely at the discretion of the landlord.
34. Subsection (3) requires that before serving the notice, the landlord must make all reasonable enquiries to establish whether there are any qualifying occupiers of the house and, if so, their identities. Such reasonable enquiries would generally be by letter to the tenant and/or visits to the tenant's home. Landlords should, in any event, make sure that they have an audit trail which clearly establishes attempts made to identify and notify any qualifying occupiers.
35. Landlords should, so far as is possible, send out the Notices to the tenant and the qualifying occupier(s) on the same date. While there is no provision saying that the notices to qualifying occupiers require to have the same date of serving as the notice to the tenant, the notice has to specify that the landlord may raise proceedings in terms of section 14 only after a certain period of time. Clearly, the time limits would have to be the same in the notices and this would not be possible if the notice(s) to the qualifying occupier(s) were served a considerable period of time later than the notice to the tenant.
36. Where people join the household after the notice for possession is served e.g. a family member, it will be a matter of fact whether or not that person is or is not a qualifying occupier, in line with subsection (6) and described in paragraph 39. If there is a child under the age of 16 years prior to the notice of proceedings being served, they should be served with a notice if they attain the age of 16 years by the time the case is heard. These are matters which may be discussed by the sheriff when the case calls in court.
37. While there is a general obligation on the tenant to make the landlord aware of any qualifying occupiers, landlords will need to make sure that tenants are aware that they require this information and that the information is kept up to date. It is suggested that the process of signing tenants up to the new SST could be used to establish whether there are any qualifying occupiers in the household.
38. Subsection 4 (a) and (b) requires that the notice to be served on the tenant and any qualifying occupier(s) must include the ground(s) on which the court order will be sought, which must be one of the 15 grounds set out in Part1 of Schedule 2 to the Act. The notice must be served at least 4 weeks before the court order is sought.
39. Subsection (6) defines "qualifying occupier" for the purposes of this section and section 15 of the Act as a person who occupies the house as that person's only or principal home and who is:
- a member of the tenant's family aged at least 16 years;
- a person to whom the tenant has, with the consent of the landlord, assigned (for the purposes of the Act, assignees are treated as qualifying occupiers),sublet or otherwise given up possession of the house or any part of it;
- a person who, with the landlord's consent, has been taken in as a lodger.
Rights of Qualifying Occupiers in Possession Proceedings (section 15)
40. This section enables a qualifying occupier to play a part in possession proceedings, so that their rights as well as the tenant's rights may be considered by the court. When a qualifying occupier(s) applies to the court to be a party to the proceedings, the court must grant the application. This will allow qualifying occupiers, if they so wish, to put their point of view to the court, for example to explain the consequences of the repossession action for themselves. It will be for the sheriff to decide what weight to give to the views of the qualifying occupier(s) in determining whether it is reasonable to grant an order to possess the house.
Rights of Qualifying Occupiers and Data Protection
41. The rights of qualifying occupiers supersede the Data Protection Act provisions. Personal data may be disclosed when required by legislative enactment or order of the court when the disclosure is necessary in connection with legal proceedings, in obtaining legal advice and in establishing or defending legal rights. Qualifying occupiers need this information to defend their legal rights and, in terms of the legislation, must be served with a notice under the 2001 Act.
Powers of Court in Possession Proceedings (section 16)
42. Section 16(1) sets out the powers of the court in proceedings for recovery of possession of a house let under an SST to adjourn proceedings as it thinks fit for a period or periods, with or without conditions as to payment of outstanding rent or otherwise.
43. Subsection (2) sets out the circumstances in which the court will make an order for terminating an SST and giving the landlord the right to recover possession of the house on a ground set out in Part 1 of Schedule 2 of the Act. Broadly, these grounds are divided into "conduct" and "management" grounds, and are summarised below:
The tenant owes the landlord rent or has broken some other condition of the tenancy agreement.
The tenant, or someone residing in or visiting the tenant's house, has been convicted of using the house or allowing it to be used for illegal or immoral purposes or a criminal offence, punishable by imprisonment, which was committed in the house or the locality.
The condition of the house or common parts has deteriorated because of the fault of the tenant or somebody in the tenant's household.
The condition of any furniture the landlord has supplied has deteriorated because of the fault of the tenant or somebody in the tenant's household.
The tenant, and the tenant's spouse or co-habitee, have been absent from the house for more than 6 months without good reason or have stopped living in it as their principal home.
The tenancy was granted as a result of false information given by the tenant in the application for the tenancy. Landlords should make sure that questions posed on any application for a tenancy are sufficiently comprehensive and explicit to ensure that all necessary information is elicited at the time of application and there is no opportunity for a prospective tenant simply to omit relevant information.
The tenant or someone residing in or visiting the tenant's house has been anti-social to anyone else in the locality or has pursued a course of conduct amounting to harassment of such a person and it is not reasonable for the landlord to transfer the tenant to another house.
Paragraph 7(2) of Part 1 of Schedule 2 to the Act defines "anti-social", "conduct" and "harassment". In summary these are:
"Anti-social" means causing or likely to cause alarm, distress, nuisance or annoyance to any person or causing damage to anyone's property.
"Conduct" includes speech, and a course of conduct must involve conduct on at least two occasions.
"Harassment" is as defined in section 8 of the Protection of Harassment Act 1997 and includes causing the person alarm or distress.
The tenant, or someone residing in the tenant's house, has been guilty of harassment, nuisance or annoyance in or in the neighbourhood of the house, or has continued to cause alarm or distress to someone in the locality and it is appropriate, in the landlord's opinion, to transfer the tenant to another house.
The house is overcrowded as defined in section 135 of the Housing (Scotland) Act 1987.
The landlord intends to demolish or carry out substantial work to the house (or the building in which it is located) within a reasonable time and that work cannot be done if the tenant is still living there.
The house has been designed or adapted for people with special needs and no one in the tenant's household has such special needs but the landlord requires the house for someone who has.
The house is part of a larger group of houses which have been designed or adapted or located near facilities for people with special needs and no-one in the tenant's household has those needs but the landlord requires the house for someone who has.
The landlord has leased the tenant's house from somebody else and that lease has ended or will end in 6 months.
The landlord is an islands council, the house is held for education purposes, it is occupied by someone who used to be employed by the council for education purposes and now it is needed for someone else for those purposes.
The landlord wants to transfer the house to the tenant's husband or wife (or ex-husband or ex-wife) or co-habitee, where one of them no longer wishes to live with the other. In this case, the landlord will offer a suitable alternative house as defined by Schedule 2 Part 2 of the Housing (Scotland) Act 2001. The sheriff must also be satisfied that it is reasonable to grant the order.
N.B. Please note that there are no mandatory grounds for repossession. All grounds are subject to the test of reasonableness.
44. In relation to grounds 1 to 7 ("conduct grounds") the court must make the order where it considers it reasonable to do so. In relation to grounds 8 to 14 ("management grounds"), the court must make the order if it considers other suitable accommodation will be available for the tenant. In relation to ground 15, the court must make the order where it considers that it is reasonable to do so and that other suitable accommodation will be available.
45. Suitability of alternative accommodation is determined by reference to Part 2 of Schedule 2. The accommodation is suitable if it consists of premises which are to be let as a separate dwelling under an SST or an assured tenancy and must be reasonably suitable to the needs of the tenant and the tenant's family. Part 2 sets out a number of criteria for determining whether the accommodation is likely to be reasonably suitable for the tenant and the tenant's family. These criteria are as follows:
- the proximity of the accommodation to the place of work (including school or college) of the tenant and of members of the tenant's family, compared with the tenant's existing house;
- the extent of the accommodation required by the tenant and the tenant's family;
- the character of the accommodation compared with the tenant's existing house;
- the terms on which the accommodation is offered compared with the terms of the tenant's existing tenancy, if any furniture was provided by the landlord under the existing tenancy;
- whether furniture is to be provided under the new tenancy which is comparable in relation to the needs of the tenant and the tenant's family; and
- any special needs of the tenant or the tenant's family.
46. Part 2 also provides that, where a landlord has made an offer of alternative accommodation, the burden of proof that it is not suitable rests on the tenant.
47. Section 16 (6) provides that, in relation to ground 10, if the house is being modernised and refurbished and it appears to the court that the landlord intends that the tenant should return to the house after completion of the work, the court must make an order entitling the tenant to return to the house when the work has been completed.
48. In deciding whether it is reasonable to make an order for the termination of the tenancy, the court must take into account all the circumstances of the case. The 2001 Act also sets out specific criteria which courts must take into account, although they are also at liberty to take account of any other relevant considerations. The aim is to achieve greater consistency in the interpretation of "reasonableness" by courts. The specific criteria are set out in section 16 (3) of the Act and are broadly as follows:
- the nature, frequency and duration of the conduct leading to the eviction proceedings;
- how far the tenant was personally responsible for the conduct or whether it was the consequence of acts or omissions by others, for example if the recovery action results from rent arrears, whether any housing benefit entitlement has been paid timeously or in full;
- the effect of the tenant's conduct on others, for example whether there are serious adverse consequences for other local residents; and
- whether the landlord has considered and, if appropriate, progressed other possible courses of action before raising eviction proceedings.
49. In all cases the word "conduct" here refers to the action by the tenant which has had recovery action under the specified grounds set out in paragraphs 1 to 7 of Schedule 2.
50. It will be important for landlords to keep good records and present the necessary evidence to satisfy the court that the recovery action does indeed meet these tests of reasonableness.
Abandoned Tenancies (section 17)
51. This section enables a landlord under an SST to take action to secure and take possession of a house which appears to have been abandoned by the tenant. The procedures to be followed before taking possession are set out in section 18 of the Act,
Repossession (section 18)
52. This section sets out the procedures which must be followed by a landlord wishing to take possession of an abandoned house, in the circumstances defined in section 17 of the Act. The landlord must:
- serve on the tenant a notice under subsection (1) requiring the tenant to give 4 weeks' notice in writing if the tenant intends to occupy the house as the tenant's home (subsection (1));
- make sufficient inquiries to satisfy itself that the house is unoccupied and that the tenant has no intention of re-occupying it (subsection (2)); and
- serve a further notice on the tenant (subsection (2)), which brings the tenancy to an immediate end and allows the landlord to take possession of the house without further proceedings.
There is no statutory abandonment notice. Landlords simply have to write to a tenant following the process described above.
53. By "sufficient inquiries", what is intended is that landlords should make reasonable inquiries of family, neighbours, employers, Health Board, police, schools, etc. to satisfy themselves, in so far as they can, that the house has been abandoned. There could be valid reasons why a tenant would need to leave the house empty for some time, e.g. employment or family reasons, stay in hospital or in prison. While there is a duty on tenants to let the landlord know if they are to be absent from the house for a period of time, failure on the part of the tenant to do so should not in itself constitute proof of abandonment. Every reasonable attempt should be made by the landlord to satisfy itself that the house is unoccupied and that the tenant has no intention of re-occupying it.
54. Subsection (4) gives an order making power to Scottish Ministers to outline arrangements for the securing of tenants' belongings in their absence and arrangements for their return or disposal. The order provides for:
- the landlord to take the property into safe custody;
- delivery of the property to the tenant who has abandoned the house, including charges for delivery;
- the disposal of the property, if the tenant has not arranged for delivery within a specified period; and
- the use of the proceeds of any disposal of property towards any costs incurred by the landlord or any outstanding rent or other debt related to the tenancy.
Tenant's recourse to court (section 19)
55. This section gives a Scottish secure tenant whose house has been repossessed in accordance with the abandonment procedures in sections 17 and 18 of the Act a right of appeal to the court within 6 months of the repossession. Where the court finds that the landlord acted wrongly or unreasonably it must order the tenancy to continue or direct the landlord to provide other suitable accommodation (as defined in Part 2 of Schedule 2). Subsection (4) enables the court to make further orders in relation to cases where a tenant has successfully challenged an abandonment order, for example to instruct a landlord to forego rent due for the period of apparent abandonment.
Abandonment by joint tenant (section 20)
56. This section enables a landlord under an SST to take action to bring to an end the interest of a joint tenant where that joint tenant appears to have abandoned the joint tenancy. This is a new provision, which complements the new right to a joint tenancy and provides an important safeguard for landlords and tenants who, for example, may have been left in the house. The procedures to be followed before taking possession are set out in subsections (2) and (3) of the Act.
The landlord must:
- give 4 weeks' notice in writing (subsection (2));
- make sufficient inquiries to satisfy itself that the abandoning tenant is not occupying the house and does not intend to occupy it as the tenant's home (subsection (3)); and
- serve a further notice on the abandoning tenant (subsection (3)), bringing the abandoning tenant's interest in the tenancy to an end with effect from a date specified in the notice which must be not earlier than 8 weeks after the date of service of the notice.
57. By "sufficient inquiries", what is intended is that landlords should make reasonable inquiries of other joint tenants as well as of those others listed in paragraph 53 above. Abandonment by a joint tenant may require more rigorous enquiries to guard against false claims of abandonment by the remaining joint tenant(s).
Joint Tenancies: Abandoning Tenant's Recourse to Court (section 21)
58. This section gives a joint tenant a right of recourse to the court where the tenant is aggrieved by a landlord bringing to an end his interest in the property under the abandonment procedures in section 20 of the Act. Where the court finds in favour of the tenant it can effectively reinstate the joint tenant or direct the landlord to make other suitable accommodation available. The court can also make a further order providing, for example, for compensation to be paid.