The Housing Green Paper (February 1999) asked for views on the case for legislation to create a single social tenancy. There was widespread support for a new single social tenancy from the 90 respondents provided it did not lead to a diminution of rights for tenants. Support was also expressed for the existing good practice MoSTA and MATA models of tenancy agreement. The single social tenancy will not apply to private sector tenancies. these will continue to be subject to existing arrangements.
The fundamental case for a single social tenancy is that social landlords now have similar customers - by and large people in housing need who require affordable housing to rent. The basic argument is therefore that landlords doing the same job for the same tenants should have a common arrangement about the rights and obligations that each requires of the other.
In 1997 the Chartered Institute of Housing (CIH) commissioned a study, "One for all — A Single Tenancy for Social Housing", Marianne Hood, June 1998, to look into the possibility of establishing a single social tenancy for tenants of local authorities, housing associations and registered social landlords in Scotland, England and Wales. The study was set in the context of continuing government emphasis on plurality and partnership in the social housing sector, with emphasis on comparing performance through Best Value, making the best use of stock and exploring options for transferring local authority housing to other landlords where this could lead to more investment.
Differences between landlords’ and tenants’ rights and obligations can present obstacles to change. This is most apparent when stock transfer is being considered but is a factor in the development of common housing registers, mobility schemes and other initiatives which seek to break down barriers within the sector.
There is a perception that contractual tenancy rights are not as strong as statutory rights. For example, where a notice to quit is served on a tenant all contractual rights are automatically suspended so that statutory action may be taken.
Our purpose in proposing a single social tenancy is to address these issues and at the same time clarify and improve tenancy conditions across the sector. The new tenancy would reconcile the differences between secure and assured tenancies, combining the best features of each and introducing new elements. In particular, from the secure tenancy it would use the principle that important basic rights and obligations — referred to in the CIH study as ‘core rights’ — are enshrined in statute, and therefore common to all tenants. From the assured tenancy it would borrow the flexibility of additional contractual rights and obligations (for both parties). New elements would include probationary tenancies for those with a history of behaving in an anti-social manner in order to ensure protection of the responsible majority, and provisions paving the way for a factoring mechanism for all tenants who exercise their right to buy.
The creation through legislation of the single social tenancy would lead to a single set of rights for all public sector tenants. It would end the fears and uncertainty of tenants involved in stock transfer proposals, and would provide consistency and promote equality across the public sector, creating one set of rights and responsibilities for tenants of social landlords. It would also provide an opportunity to improve rights for tenants by extending the rights currently available to secure tenants only i.e. the right to repair, right to compensation for improvements, right to manage and the proposed new right to participate, which is currently the subject of a feasibility exercise. It would also provide clarity on the legal status and obligations of a tenancy, for example, by setting out the standards of expected behaviour in relation to the conduct of tenants and their tenancies.
The Way Forward
We will commission a model single tenancy agreement based on the Model Secure Tenancy Agreement (MoSTA), embodying core statutory rights for all social housing tenants with provision for variation to be made to include additional rights within the contract between landlord and tenants.
Annex A sets out a list of the key differences in the existing statutory rights between secure and assured tenancies in Scotland, together with a statement of what it is proposed will be the core rights under the terms of a model single social tenancy agreement. It also sets out further additional contractual rights which might be included. The aim is for a single social tenancy which incorporates the statutory terms of the secure tenancy together with additional contractual rights based on best practice in the existing Model Assured Tenancy Agreement (MATA).
We propose to commission the model agreement from a legal expert and to establish a small working group comprising landlord and tenant representatives, and representatives from the housing professional and voluntary sectors and the legal profession.
Primary legislation will be required to bring about the statutory single social tenancy. We intend that the legislation would set out the minimum or core requirements. By agreement with tenants, landlords would be able to add further contractual rights reflecting local arrangements.
Probationary tenancies
Whilst we wish to extend tenants rights as far as possible, we also want to match rights to responsibilities — and so ensure that tenants abide by the obligations placed on them. Anti-social behaviour, frequently associated with drug dealing and in many cases involving actual or threatened violence, can make the lives of neighbours and in some cases whole communities a total misery.