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The Tenants Rights (Scotland) Act 1980 which introduced secure tenancies and other rights for tenants was the result of campaigning by tenants’ organisations and many other bodies, for a statutory ‘tenants charter’ with clear rights including security of tenure, affordable rents, consultation and participation. The 1980 Act did not include all the rights called for (e.g. consultation and participation) but it did give security of tenure and other rights as follows:
Security of tenure
Right to a written lease
Right to challenge unreasonable tenancy conditions
Right to take in lodgers or sublet, or transfer the tenancy to someone else
Right to alter or improve the home
Right to information about transfer and exchange rules
Right to succession
Right to Buy
These rights did not extend to rent levels or how rents were set and increased. Local authorities were free to set rents according to their own policies and any constraints introduced by central government. Rent levels for housing association tenants were subject to determinations by the Rent Officer in relation to a ‘fair rent for the property’.
The rights were broadly the same for all tenants of local authorities and housing associations in England, Scotland and Wales and remained generally intact until 1988 when the then Government changed the status of housing associations by putting them into the ‘independent rented sector’ and changed the status of new housing association tenants from secure to assured.
The Housing (Scotland) Act 1986 extended the right to buy to non-charitable housing associations with more than 100 dwellings and the Housing (Scotland) Act 1987 consolidated earlier legislation, including the 1980 and 1986 Acts.
For secure tenants the Housing (Scotland) Act 1988 brought in the right, if they wished, to transfer to a housing-co-operative, a housing association or another landlord approved by Scottish Homes. This was termed ‘tenants’ choice’.
In 1991 the Tenant’s Charter for Scotland was published. It set out secure tenants’ existing rights and made a commitment to improve those rights further by legislative and other means. New legislative rights were introduced in 1993 under the Leasehold Reform Housing and Urban Development Act as follows:
The Right to Repair
The Right to Compensation for Improvements
Reforms to the right to buy
Introduction of Rent to Mortgage
Right to Manage
The 1993 Act also required local authorities to make and publish rules governing the allocation of their houses and prohibited elected members from taking part in decision making on individual allocations of council housing.
A series of guidance notes on good practice in housing management notes were also produced in line with the commitments to ensure that tenants had access to information and advice and to extend competition in housing management.
The main statutory provisions governing the right to buy scheme are now contained in Part III of the Housing (Scotland) Act 1987, as amended by the Housing (Scotland) Act 1998 and the Leasehold Reform Housing and Urban Development Act 1993.
Assured Tenancies
The Housing (Scotland) Act 1988, which became effective on 2 November 1988 introduced assured tenancies for housing association tenants. Any tenancy granted from 2 January 1989 by a housing association, a trust or a co-operative is offered on an assured basis only and, as such, does not carry the right to buy. However, former secure tenants, for example those transferring from a council landlord to a housing association, maintain a preserved right to buy under the legislation. Assured tenants have limited statutory rights with the expectation that contractual rights will be given through their tenancy agreements.
Assured tenancies were created to stimulate private funding, to simplify the grounds for possession, to balance the needs of landlords to obtain possession when they wished with the needs of tenants to be secure in their homes, and to increase the supply of rented housing. At that time, statutory rights were seen as obstacles to private funding and it was felt that assured tenancies would give housing associations the essential freedom and flexibility in setting their rents to enable them to meet the requirements of private sector finance instead of relying on funding from public sources.
However, the intended split of approach between councils and housing associations never fully happened, partly because the regulators (Scottish Homes, the Housing Corporation and Tai Cymru) sought to restore many of the statutory rights through tenancy agreements. This has left a confusing mixture of rights and obligations. Differences exist not only between Scotland, England and Wales, but between associations themselves and even between neighbouring tenants.
Model Secure Tenancy Agreement (MoSTA)
In 1996-97, with funding provided by The Scottish Office, the Chartered Institute of Housing in Scotland produced a Model Secure Tenancy Agreement (MoSTA) for use by local authorities, Scottish Homes and other secure landlords. There had not previously been any model secure tenancy agreement for public sector tenants equivalent to the Model Assured Tenancy Agreement (MATA) first produced by the Scottish Federation of Housing Associations in 1988 and revised in 1990 and 1997. As a result, tenancy agreements issued by local authorities, Scottish Homes and other secure landlords in Scotland varied widely. There had been concerns for some time that some tenancy agreements:-
were very legalistic
were not expressed in plain English
were not always easily understood by tenants
varied widely in clarity and content
did not include information on, for example, anti-social behaviour
The Scottish Affairs Committee of the House of Commons, in its 1996 report of its inquiry into Housing and Anti-social Behaviour considered it vital that tenants understood, from the outset, what behaviour was acceptable and what was not and supported the decision of The Scottish Office to commission the CIoH to draw up a "best practice" tenancy agreement to provide further guidance for local authorities.
The model agreement sets out clearly, comprehensively and in plain English, the rights and responsibilities of both the landlord and the tenant. Under the heading "Respect for Others" the model sets out explicitly the behaviour expected of the tenant, those living with the tenant and any visitors under the tenancy agreement, including particular prohibitions on behaviour which may cause nuisance or annoyance to neighbours or any person in the neighbourhood and on harassment or assault of any person in the house or neighbourhood, for whatever reason.
Model Assured Tenancy Agreement (MATA)
During the passage of the Housing (Scotland) Act 1988, the Scottish Federation of Housing Associations (SFHA) expressed serious concern that assured tenants of housing associations and co-operatives would have fewer statutory rights than secure tenants of the same landlord. For this reason, the SFHA undertook the production of a Model Assured Tenancy Agreement (MATA). In developing this model tenancy agreement, the SFHA sought to replicate the rights of secure tenants within a contractual assured tenancy agreement, in particular the right of succession to a tenancy. The model agreement sets a standard of good practice in the preparation of tenancy agreements. It contains core clauses which must be included by all housing associations using the model as well as optional clauses which are examples of good practice. Although it is not part of a formal regulatory regime, the MATA is endorsed by Scottish Homes, and forms part of ‘Raising Standards in Housing’, used as a benchmark for performance monitoring by Scottish Homes. The MATA is therefore followed by most housing associations in Scotland.
Secure and Assured Tenancies: Key Differences
A list of the key differences in the statutory rights between secure and assured tenancies in Scotland is attached at Annex A.
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