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Succession to SST (section 22 and Schedule 3)

59. This section and Schedule 3 make provision for succession to an SST on the death of the tenant. The section includes a right to a second round of succession (subsection (2)). This is an enhancement of the current statutory succession rights for both secure and assured tenants. Schedule 3 defines who is a person qualified to succeed to a tenancy and the circumstances in which they can do so.

60. For each separate round of succession there are 3 levels of priority:

  • first priority goes to the surviving spouse, co-habitee of either sex (providing the house has been their only or principal home for at least 6 months before the tenant's death) or joint tenant;
  • second priority (if nobody qualifies or chooses to succeed from the first priority group) goes to other 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;
  • third priority (if nobody in any of the above categories qualifies or chooses to succeed) goes to carers 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 have given up their only or principal home to care for the tenant or a member of the tenant's family.

In the case of a fully mutual co-operative housing association, qualifying persons must also apply for membership and be accepted as members of the co-operative. Where this is not already the case, the co-operative should process the successor's membership application as quickly and as sympathetically as possible. Such co-operatives are required by the regulator to have a clear and non-discriminatory membership policy.

61. In all cases the house of the deceased tenant must have been the only or principal home of the qualifying person. In the case of carers, no definition of carer has been included in the Act. This is intentional to allow for a wide spectrum of care from formal to informal caring arrangements. The principal test for the landlord is not the level of care provided but that the individual has given up their only or principal home for the purpose of caring. The intention is to ensure that individuals who give up their homes to care for a tenant, or a member of the tenant's family, is not left homeless by the death of the tenant or other qualifying persons. Where a house has been designed or substantially adapted for the use of persons with special needs, then paragraph 5 of Schedule 3 specifies that only spouses, co-habitees, joint tenants or persons with special needs can succeed to that tenancy. Other persons who would otherwise be qualified to succeed have a right to alternative suitable accommodation by virtue of subsections (6) and (7).

62. Normally, the death of a tenant who had succeeded under a second round of succession, would lead to the termination of the tenancy. Subsection (8), however, clarifies that in the case of joint tenancies, tenancies are not terminated on the death of a joint tenant if the remaining tenant or tenants continue to live in the house. Neither is there any limit to the number of occasions on which a joint tenancy can be created.

63. Subsection (9) makes provision for a person who would have succeeded to the tenancy, but who cannot because the second round of succession has passed, to continue as a tenant for a period not exceeding 6 months but not under an SST or short SST. This is to provide time for the person concerned to find alternative suitable accommodation and landlords will, in any case, wish to consider if it is reasonable to allocate a new tenancy to the person concerned in the normal way.

64. Subsection (10) makes provision for an SST to continue (for the purposes of succession) where a tenant has to move to alternative accommodation.

65. Paragraph 9 of Schedule 3 provides that where there is more than one qualified person at any level in the hierarchy of succession rights e.g. if there were both a spouse and a joint tenant at level one in the hierarchy, then it is open to the qualifying persons to come to an agreement about which one of them should succeed. Failing agreement within 4 weeks of the death of the tenant, or of the date of notification of right to succeed to the tenancy in terms of paragraph 10 of Schedule 3, the landlord will decide who is to succeed.

66. An SST comes to an end on the death of the tenant unless there is a qualified person who can succeed to that tenancy. If succession is possible, the new tenant succeeds directly to the tenancy and there is no gap from a legal point of view. This, of course, does not accord with real life when it often takes a period of time for the landlord to be advised that the original tenant has died. Most social landlords will have policies to deal with this already. Normally, the practice will be to leave the house in the name of the deceased or his executors for record purposes until a successor is identified and agreed. At that point a new tenancy is offered to the successor, backdated to the day after the tenant's death with the new tenant responsible for the rent from that date.

67. How any rent paid by the deceased or his estate is dealt with would depend on individual circumstances. The deceased may have been in receipt of benefits and in many cases the new tenant will be the person succeeding to the deceased's estate as well as the tenancy. Where a tenant dies and there is no successor, there may be a small element of pre-paid rent outstanding. It would be normal practice for a landlord to retain any prepaid rent until a house is cleared and the keys handed back. Again, this is a matter of housing management policy for individual landlords. Landlords can accept rent where someone declines the tenancy but remains in the house for a period of up to 3 months. Similarly, after a death, a person living in a house can offer rent for the period of occupation but until a new tenancy is offered the landlord will make it clear in writing that no protected tenancy is created by acceptance of these payments. Landlords have to be careful that they do not create a form of contractual tenancy by accepting rent and are advised to take their own legal advice on this point.

68. The Act does not allow for a right of appeal against decisions made on succession and, indeed, paragraph 9 of Schedule 3 to the Act gives landlords power to make a final decision on issues of succession. Good practice would, however, suggest that landlords should have in place clear and well-publicised internal mechanisms for appeal in such cases.

Tenant's Right to Written Tenancy Agreement and to Information (section 23)

69. This section gives tenants a right to a written tenancy agreement and to information about the landlord's policies and procedures. The landlord is required to:

  • draw up a tenancy agreement stating (expressly or by reference) the terms of the tenancy;
  • ensure that it is, before the commencement of the tenancy, subscribed by the landlord and the tenant in accordance with the Requirements of Writing (Scotland) Act 1995 (c. 7); and
  • supply a copy to the tenant.

70. The Requirements of Writing (Scotland) Act 1995 requires that the agreement must be a "self-proving" document. This means that each signature must be witnessed. The same witness can witness all signatures. Any other document which is to form a part of the agreement (for example in relation to service charges) should also be signed and witnessed and reference made within it to the tenancy agreement.

71. Subsection (2) of the Act makes clear that the tenant is not liable for any fees in connection with the preparation of the tenancy agreement.

72. Subsection (3) permits Scottish Ministers to issue guidance as to the form of the tenancy in a model agreement. A model SST agreement has been issued to all social landlords. 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. The model includes a disk to enable landlords to draw up local tenancy agreements using the model as a base, to ensure consistency and common standards throughout the social rented sector in Scotland, but tailored to meet local conditions and expectations with regard to e.g. keeping of pets, gardening schemes, etc.

73. Subsection (4) requires landlords to provide a prospective tenant with information, prior to the taking up of the tenancy, about the right to buy (this could include, for example, whether or not there are any relevant exemptions), and the obligations which the tenant is likely to incur if the right to buy is exercised (including responsibility for maintenance of parts of the building and areas owned in common).

74. The Scottish Executive will be providing a general leaflet on the modernised RTB in due course. In the meantime, an information booklet is available which describes the current RTB and, more recently, two booklets have been issued containing advice on home ownership generally, entitled "Thinking about Buying: A Guide to House Purchase in Scotland" and "We are all Responsible: An owner's guide to the management and maintenance of common property". Copies of these are available from the Scottish Executive, Housing 2-3, Area 1-G, Victoria Quay, Edinburgh EH6 6QQ. Tel: 0131 244 2105.

75. Subsection (5) requires the landlord to notify the tenant of any changes to legislation, including subordinate legislation, governing the RTB which might affect the tenant's right to purchase.

76. Subsection (6) requires the landlord to provide the tenant with information about its complaints procedure. It also lists other information that the landlord must supply on request, on the following:

  • the terms of the tenancy;
  • the landlord's policy and procedures in relation to setting of rents and charges;
  • the landlord's policy and rules in relation to admission to any housing list, priority of allocation of houses, transfers and exchanges and repairs and maintenance;
  • how the RTB provisions apply in relation to the tenant, the tenancy and the house;
  • the obligations the tenant is likely to incur if the tenant exercises his right to buy the house, including any obligation to maintain any building of which the house forms part and any common areas;
  • where the landlord is a local authority or a RSL, the landlord's tenant participation strategy; and
  • the landlord's arrangements for taking decisions in the exercise of its functions in relation to the management of housing accommodation and the provision of related services by it. This might include information on the landlord's committee structures, consultation procedures, time scales, etc.

77. The categories set out above are the statutory minimum, but landlords may wish to identify other information which would also be helpful to have on hand to supply on the same basis. For example, the Model Scottish Secure Tenancy Agreement recommends that at signing up the tenant should receive a Tenant's Handbook which will provide extra detail in relation to local matters. Landlords will need to take steps to ensure that all this relevant information is available in an accessible form for tenants by the time the SST is introduced.

Restriction on Variation of Tenancy (section 24)

78. This section limits the way in which changes to an SST can be made. Rents and other charges can be varied in accordance with section 25 of the Act and terms and conditions can be varied by court order under section 26, but otherwise the terms of the tenancy can only be changed by written agreement between the landlord and tenant, in line with the Requirements of Writing (Scotland) Act 1995 (c.7) which sets out provisions relating to the signing of contracts. This relates to contractual changes to the tenancy only.

Increase in Rent or Charges (section 25)

79. This section requires landlords to give each tenant not less than 4 weeks' notice, in writing, before increasing rents or other charges. Where a landlord proposes to increase rents generally, it must first consult those tenants who would be affected. While the landlord should take account of the views of tenants, the final decision rests with the landlord.

80. Good practice would suggest that landlords should involve tenants from the start of the process when setting rent, although the precise arrangements for doing this will be a matter for the landlord and will be likely to vary according to local arrangements for consultation. It is especially important to involve tenants at an early stage where an unusually large increase is proposed. Landlords should take account of the statutory rights to consultation for tenants and registered tenants organisations and the guidance on tenant participation elements of the 2001 Act. In taking account of tenants' views it is important to also let tenants know, perhaps in the context of the 4 weeks' rental increase notice, why decisions were taken.

81. Where landlords and tenants have an existing contractual rent increase formula covering a period of years, annual consultation during the period covered by the existing agreement may not be necessary, unless both parties wish to dispense with the contractual agreement.

82. As explained in paragraph 15 above, the "Scottish Secure Tenancy etc" Order 2002 will protect certain rights which are available to secure and assured tenants which are not carried forward into the SST. These rights are as follows:

  • The right of certain secure tenants of housing associations under Part VI of the Rent (Scotland) Act 1984 to apply to have a fair rent to be determined by a rent officer which, once fixed, applies for 3 years and is subject to registration thereafter; and
  • The right of statutory assured tenants of housing associations to refer a proposed increase in rent to a rent assessment committee under section 24 of the Housing (Scotland) Act 1988.

Variation of Tenancy by Court Order (section 26)

83. This section allows either a landlord (on any ground) or a tenant to apply for a court order to change a term of the SST where there is a dispute on a variation in terms. The grounds on which a tenant can seek a change are set out in subsection (2) of the Act.

84. The court has power to make any change in a term of a tenancy, apart from the level of rent or charge, that it considers reasonable having particular regard to safety considerations or likelihood of damage to the house. The court can require the tenant to pay compensation to the landlord for any financial loss arising from the variation, and to consult anyone who might be affected by the proposed change.

Repairs and improvements (sections 27 to 31 and Schedules 4 and 5)

85. Taken together, these provisions set out the rights and responsibilities of the landlord and tenant under an SST with respect to repairs and improvements to the house.

Repairs (section 27)

86. This section, with Schedule 4, puts the landlord under an obligation to ensure that the house is kept wind and watertight and reasonably fit for human habitation. This section also enables the tenant to have essential repairs done within a maximum time-scale, in line with regulations made by Scottish Ministers.

87. Under these Regulations, landlords should carry out small urgent repairs within a specified time. If the landlord's primary contractor fails to start the repair on time, the tenant may instruct another listed contractor to carry out the repair instead. In such circumstances, the tenant is also entitled to a compensation payment from the landlord. When a tenant reports a repair the landlord will confirm whether the repair is their responsibility and whether it is a qualifying repair under the Right to Repair scheme. The landlord is required to advise the tenant of the maximum time allowed to complete the repair, the rights of the tenant under the scheme, the name, address and telephone number of another contractor from a list and to make arrangements to get into the tenant's home to inspect the repair and to carry it out. All repairs under the scheme have to be paid for by the landlord.

88. Certain repairs up to the value of £350, called qualifying repairs, are covered by the Regulations. They include:

  • blocked flue to open fire or boiler;
  • blocked or leaking foul drains, soil stacks or toilet pans where there is no other toilet in the house;
  • blocked sink, bath or drain;
  • electric power-
    loss of electric power;
    partial loss of electric power;
  • insecure external window, door or lock;
  • unsafe access path/step;
  • leaks or flooding from water or heating pipes, tanks, cisterns;
  • loss or partial loss of gas supply;
  • loss or partial loss of space or water heating where no alternative heating is available;
  • toilet not flushing where there is no other toilet in the house;
  • unsafe power or lighting socket, or electrical fitting;
  • water supply-
    loss of water supply;
    partial loss of water supply;
  • loose or detached bannister or hand rail;
  • unsafe timber flooring or stair treads;
  • mechanical extractor fan in internal kitchen or bathroom not working.

89. Repair times vary depending on the type of repair and are set by law. Most repairs have to be completed within 1 working day, although a landlord has 3 working days in the case of partial loss of electrical power, partial loss of water supply, loose or detached banister or handrail and unsafe timber flooring or stair treads. There are 7 working days to effect this where the repair is to a mechanical extractor in an internal kitchen or bathroom. There may occasionally be circumstances under which it is not possible for the landlord or the contractor to do the repair within the maximum period, such a severe weather conditions. In such cases, temporary arrangements may be necessary to extend the maximum time and the landlord must notify the tenant of this.

90. If the landlord's primary contractor fails to start the qualifying repair within the set time limit, the tenant may instruct another contractor from the landlord's list to carry out the repair. The other contractor will then advise the landlord of this and the landlord will pay £15 compensation to the tenant for the inconvenience caused. If the landlord's primary contractor has started, but not completed, the repair within the maximum time, the tenant will also be entitled to £15 compensation. If a tenant is in arrears of rent, the landlord may offset the compensation against arrears.

91. The other contractor has the same length of time to carry out the repair as the landlord's primary contractor. If they fail to carry out the repair within the time limit set, the tenant is entitled to a further £3 compensation for each working day until the repair has been completed, up to a maximum of £100 for any one repair.

Duty to Inspect and Right of Access (section 27 and Schedule 4)

92. Schedule 4 also requires the landlord, before the tenancy begins, to inspect the house and identify any work necessary to ensure that the house is wind and watertight and in all other respects reasonable fit for human habitation and to notify the tenant of any such work. The landlord must also carry out any necessary work to keep the house in this condition within a reasonably timescale and make good any damage, including decoration, caused in carrying out the work. The landlord or someone authorised by the landlord can also enter the tenant's home on 24 hours notice to inspect the house and carry out any necessary work. Where forced entry is necessary for inspection, the landlord is entitled to charge the tenant to make good any damage. Landlords should consider incorporating details of access arrangements into the tenancy agreement.

Landlord's Consent to Work (section 28)

93. This section and Part 1 of Schedule 5 require a tenant to get the written consent of the landlord before undertaking any work, other than interior decoration, on a house. "Work" is defined as:

  • alteration, improvement or enlargement of the house or of any fittings or fixtures;
  • addition of new fittings or fixtures;
  • erection of a garage, shed or other structure;
  • but does not include repairs or maintenance of any of these.

94. The landlord must not unreasonably withhold its consent, but can set any reasonable conditions with respect to the work, including any standards that the work must meet. Scottish Ministers may give guidance to landlords on such conditions or standards of work. Part 1 of Schedule 5 includes provision for a tenant to appeal against either a refusal by a landlord to allow a tenant to undertake work, or against a particular condition imposed by the landlord.

Reimbursement of Cost of Work (section 29)

95. This section applies when an SST comes to an end. Where a tenant has carried out improvement work to the house, with the consent of the landlord, the landlord can make a payment to the tenant or his representative. This payment can be up to the cost of the improvement work, after deducting the amount of any grant paid by a local authority through a repairs or improvements grant (under Part XIII of the 1987 Act).

Right to Compensation for Improvements (section 30)

96. This section sets out the detailed arrangements to support a tenant's entitlement under the right to compensation for improvement. Where the tenant has carried out certain improvement works with the consent of the landlord they are entitled to be compensated for the cost of those works, when the tenancy comes to an end. Scottish Ministers can make regulations prescribing:

  • those works which qualify for compensation;
  • certain circumstances in which the tenancy comes to an end and compensation is not payable;
  • minimum and maximum levels of compensation; and
  • the procedures to be followed, and the factors to be taken into account, when claiming for or determining compensation.

97. Regulations in respect of these matters already exist for secure tenancies under the Secure Tenants (Compensation for Improvements) (Scotland) Regulations 1994 (SI1994/632). Assured tenants do not have an equivalent statutory right, but many housing association landlords operated voluntary schemes similar to that operating for secure tenants. As detailed earlier in this guidance, the right to compensation for improvements carried out by previously secure tenants prior to the commencement of the SST is protected. This means that when those tenants convert to the new SST they will continue to have rights to compensation for any improvements carried out by them as secure tenants before the 30 September 2002, as well as a right to compensation for any further improvements carried out on or after that date. The Scottish Secure Tenants (compensation for improvements Regulations 2002) will govern claims for compensation in relation to improvements that are begun on or after 30 September 2002.

98. The new Regulations will contain similar provisions to the existing Regulations with compensation payable for qualifying improvement work in terms of the Regulations. Compensation is not payable: if the tenant exercises their RTB; if the home is being repossessed or if the tenant is being granted a new tenancy for their existing house by the same landlord. Compensation is payable if there is a change of landlord or if the tenancy is assigned to a new tenant.

99. A tenant can receive compensation of up to £4,000 for any one improvement, but will not receive any compensation for an improvement if the amount payable under the terms of the scheme is below £100. A tenant can claim compensation for the cost of materials (but not appliances such as cookers or fridges) and for labour costs (but not their own labour).

100. In calculating compensation due a landlord will start with the cost of the improvements and may require the tenant to provide evidence of the amount spent. The landlord will deduct any grant paid from the cost of the improvements and adjust the present value by a depreciation formula based on the notional life of the improvements set out in a Schedule to the Regulations. The landlord may also reduce the amount of compensation if they consider that the cost of the improvement was excessive, the quality is higher than it would have been had the landlord installed it or if the tenant owes any money at the end of the tenancy. The landlord may also adjust the level of compensation up or down depending on the condition of the improvement when the tenancy ends.

101. A tenant must make a claim in writing to the landlord during a period starting 28 days before and ending 21 days after the tenancy comes to an end. If the landlord refuses to pay compensation, the tenant may ask the landlord to have the decision reviewed by an independent valuer appointed by the landlord, or any of the landlord's members who took no part in making the initial decision or all the landlord's members within 28 days of receiving the refusal.

102. Compensation under the new Regulations will cover the following improvements:

  • Bath or shower;
  • Cavity wall insulation;
  • double glazing or other external window replacement or secondary glazing;
  • draught proofing of external doors or windows;
  • insulation of pipes, water tank or cylinders;
  • installation of mechanical ventilation in bathrooms and kitchens;
  • kitchen sink;
  • loft insulation;
  • rewiring and the provision of power and lighting or other electrical fixtures; (including smoke detectors);
  • security measures other than burglar alarm systems;
  • space or water heating;
  • storage cupboards in bathroom or kitchen;
  • thermal radiator valves;
  • wash hand basin;
  • water closet (WC);
  • work surface for food preparation.

Interior decoration does not qualify for compensation.

103. The discretionary power under section 29 of the Act enables compensation to be paid for improvements which fall outside the scope of the new scheme. Compensation will not be payable under the new Regulations if compensation has already been paid under section 29 in respect of those improvements.

104. Schedule 5 to the Act sets out the terms for the landlords consent for improvements including the ability of the landlord to attach conditions and the right of the tenant to appeal to a sheriff against decisions of the landlord.

Effect of Work on Rent (section 31)

105. This section prevents a landlord increasing the rent of a tenant, the successor to the tenancy or the successor's spouse or co-habitee to reflect any increase in the value or amenities of the house arising from improvement works undertaken and agreed with the landlord by that tenant.

Assignation, Subletting, etc. (section 32)

106. This section entitles a tenant to assign or sublet their house or to take in a lodger with the consent of the landlord. In the case of an assignation, the house must have been the assignee's only or principal home for 6 months prior to application for consent to assign. The landlord's consent may only be withheld if there are reasonable grounds to do so. Subsection (3) sets out examples of what such grounds might be. These are where:

  • a Notice of Proceedings for Possession has been served on the tenant specifying any of the "conduct" grounds set out in paragraphs 1 to 7 of Schedule 2 to the Act;
  • an order for recovery of possession of the house has been made against the tenant under section 16 (2) of the Act;
  • it appears to the landlord that the tenant is to receive a payment for the assignation, subletting or other transaction which is other than a reasonable rent or a reasonable and returnable deposit;
  • the transaction would lead to overcrowding; and
  • the landlord proposes to carry out work to the house or building which would affect the accommodation likely to be used by the subtenant or other person who would reside in the house as a result of the transaction.

107. Subsection (4) provides that where the landlord is a RSL which is a co-operative housing association, any consent is subject to the condition that the assignee, subtenant, or other person is a member of the association when the assignation or sublease takes effect or when possession is given to the other person. This ensures that the status of the co-operative cannot be undermined by tenants assigning their tenancy to non-members. Tenants who enquire about this should be advised to make sure that the prospective assignee applies for membership in advance of their request for the assignation to take place.

108. The examples of reasonable grounds in subsection (3) can be modified by order but, although they are specified on the face of the Act as a reasonable basis for refusal, this should not prevent landlords from refusing on other grounds which they consider to be reasonable. Equally, the landlord can use its discretion to allow the assignation even where these statutory grounds exist.

109. Subsection (6) requires that where the landlord has given consent to an assignation, subletting or other transaction, the tenant must notify the landlord of any proposed increase in the rent payable by the subtenant at the commencement of the assignation, subletting or other transaction and must not increase the rent if the landlord objects to the increase.

110. Landlords should make this clear to tenants in their published rules and should remind tenants about this requirement when the tenant makes application for consent to assign, sublet or otherwise give up possession of the house or any part of it.

111. Subsection (7) clarifies the status of an assignation, subletting or other transaction, while subsection (8) defines "subtenant" as a person entitled to possession of a house or any part of a house under an assignation, subletting or other transaction, and includes a lodger.

Exchange of House (section 33)

112. This section provides a tenant with a right to exchange their house with another tenant, providing that both tenants are Scottish secure tenants and that the landlords of both tenants have given their consent. Such consent may only be refused if there are reasonable grounds to do so. Subsection (3) sets out examples of what such grounds might be. These are where:

  • a Notice of Proceedings for Possession has been served on the tenant specifying any of the "conduct" grounds set out in paragraphs 1 to 7 of Schedule 2 to the Act;
  • an order for recovery of possession of the house has been made against the tenant under section 16 (2) of the Act;
  • the house was provided by the landlord in connection with the tenant's employment with the landlord e.g. is a tied house;
  • the house has been designed or adapted for occupation by a person with special needs and if the exchange took place, there would no longer be a person with such special needs occupying the house;
  • the accommodation in the other house is substantially larger than required by the tenant and the tenant's family, or is not suitable to the needs of the tenant's family; or
  • the exchange would lead to overcrowding of the house such as would render the occupier guilty of an offence under section 139 of the 1987 Act.

113. These examples of grounds can be modified by order made by Scottish Ministers under subsection (5) but, as in the case of assignations, etc. it is quite appropriate for landlords to refuse an exchange on other grounds if they consider that these are reasonable. Equally, the landlord can use its discretion to allow the exchange even where these statutory grounds exist. The statutory right to exchange only applies where a Scottish secure tenant exchanges with another Scottish secure tenant. Good practice would suggest, however, that there will be circumstances where at least one of the parties does not have an SST but the exchange would be allowed. An example of this would be mobility exchanges from other parts of the United Kingdom.

114. Subsection (4) requires that where the landlord is a RSL which is a co-operative housing association, any consent is subject to the condition that the tenant of the other house is a member of the association when the exchange takes effect.

115. Subsection (6) provides that on an exchange, the existing tenancy is terminated and the tenant is taken to have been granted an SST of the other house. Landlords should note that section 34(6) of the Act applies the provisions relating to SSTs (subject to specific exceptions) to short SSTs. This would include the right to exchange. In deciding whether to consent to a request to exchange from a tenant with a short SST, the landlord(s) will require to take into account whether the special circumstances that led to the tenant being granted a short SST still apply. A landlord who wishes the tenant to have a short SST of the other house, must be satisfied that there have grounds to do this under section 34 and Schedule 6 to the Act. Where the landlord serves a notice in these circumstances the tenant will have a right to appeal against this decision.

Assignation, Subletting, Exchange, etc. (Schedule 5)

116. Paragraph 9 of Part 2 of Schedule 5 requires the tenant to make a written application for consent to assign, sublet or otherwise give up possession of the house or any part of it. The tenant must give details of the proposed transaction, in particular, of any payment which has been or is to be received by the tenant in consideration of the transaction.

117. Similarly, paragraph 10 of Part 2 of Schedule 5 requires a tenant who wishes to exchange the house which is the subject of the tenancy for another house which is the subject of an SST, to make a written application for consent to the landlord and (if different) to the landlord of the other house. The tenants must give details of the proposed transaction and, in particular, of the other house.

118. On an application under paragraphs 9 or 10, the landlord may consent or refuse consent, provided that it is not refused unreasonably (paragraph 11 of Part 2 of Schedule 5).

119. Paragraph 12 of Part 2 requires the landlord to intimate consent or refusal and, in the case of refusal, the reasons for the refusal within one month of receipt of the application. If the landlord fails to comply with this, it is to be taken to have consented to the application. There is no scope within the legislation to give qualified consent or refusal. If the landlord does not have sufficient information on which to base his decision he must refuse. Good practice would suggest, however, that in such cases the refusal be accompanied by a letter explaining that the application has been refused due to a lack of information and inviting a further application when such information is available.

120. Paragraph 14 of Part 2 provides a right of appeal to the court by a tenant whose landlord refuses consent. Paragraph 15 requires that in such proceedings the court must, unless it considers that the refusal is reasonable, order the landlord to consent to the application. Notwithstanding the right of appeal to the courts, landlords should also ensure that they have clear and well-publicised internal appeals mechanisms in place.

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Page updated: Wednesday, July 26, 2006