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The Rough Guide to Housing Law in Scotland

May 2010

There are six types of tenancy available in Scotland.

  1. Scottish Secure Tenancies (public sector)
  2. Short Scottish Secure Tenancies (public sector)
  3. Assured Tenancies (private sector)
  4. Short Assured Tenancies (private sector)
  5. Ordinary Contractual ‘Common Law’ Tenancies
  6. Regulated Tenancies (now mostly if not wholly irrelevant)





Leases

If tenancy less than one year, it need not be in writing – may be made orally. However, leases in the public sector are typically monthly but should still be in writing.



For leases signed after 1 August 1995, see the Requirements of Writing (Scotland) Act 1995 for the rules regarding signatures and validity.



Essential Elements to all leases:-

  • The parties must be specified
  • The subject must be clearly identified.
  • Rent must be agreed (need not be monetary)
  • Duration (if not specified, this is not fatal to validity – one year is implied per Gray v Edinburgh University 1962 S.C. 157) If lease not terminated – tacit relocation applies i.e. the lease continues indefinitely on the same grounds as previously agreed for a max of one year at a time. *Can cause problems to find ish date.*



Tenant’s principal obligations in common law:-

  • To enter in to possession
  • Occupy and use the subjects let
  • To use those subjects only for the purpose for which they were let
  • To take reasonable care of the property
  • To pay the rent when it becomes due
  • To plenish the subjects (less important nowadays)



Tenant’s principal rights in common law:-

  • To be placed in full possession of the subjects let and be allowed to remain there for the duration of the lease (duty for landlord to inspect house immediately before lease commences – Lamb v Glasgow DC 1978 SLT (Notes) 64 – see also Sch 4 of 2001 Act as referred to on page 3.)
  • To be given subjects that are reasonably fit for purpose for which they were let i.e. tenantable and habitable condition.
  • To have repairs carried out by landlord (not singular trivial repairs). Must be ‘wind and watertight against what may be called the ordinary attacks of the elements, not against exceptional encroachments of water due to other causes’- Wolfson v Forrester 1910 S.C. 675. Must complete repairs – Little v Glasgoe District Council 1988 SCLR 482.



Lease may be ended prematurely by one of the following:-

  • The parties inserted a break clause in the lease
  • The parties agree to end the lease
  • The contract frustrated e.g. by property being destroyed by natural disaster
  • Landlord may terminate under an irritancy clause if tenant in breach of a term agreed
  • Where there is no irritancy clause then either party may rescind the contract in response to a material breach by the other.
  • Lease reaches the ish date – no need for notice to quit prior to this.





N.B. Leases are real rights.

1. Scottish Secure Tenancies (SST)

Housing (Scotland) Act 2001, Part 1, Chapter 1 and Schedules 1-6



S11 gives the definition of the SST – although see Sch 1 for exceptions.) S12 sets out termination of SST. Requirements for recovery of possession set out in S14-16, Sch 2 – need Notice of Intention to Raise Proceedings. Landlord has 6 months from the date on this form (AT6) to begin proceedings. S24-26 allows variation of terms. S25 allows increasing rent/charges with 4 weeks notice. Tenants must be ‘consulted’ on this, but this means little in reality. S27 and Sch 4 sets out landlord repairing obligations – see Para 1 of Sch for habitability obligation. S28 sets out landlord’s consent to work. S32 relates to assignation and sub-letting. S33 allows tenants of an SST to exchange the house for another held under an SST and need not be the same landlord.



UraTemp Ventures Ltd v Collins [2001] UKHL 43 – no need to cook in a dwelling place, therefore could be merely one room in hotel which one has been occupying for a long time.



*Preserved right to buy at 60-70% discount. But, if you move- the cap is at £15,000 and may sue housing association if not told this. N.B. local authority may claim the area is ‘pressured,’ therefore the right to buy is suspended. Keep an eye on SNP’s policy on right to buy. These rules may change. Prisoners can exercise right ot buy if still signs of occupancy and intention to return – Beggs v Kilmarnock and Loudon DC *





2. Short Scottish Secure Tenancies (SSST)

Housing (Scotland) Act 2001, s34-37 and Schedule 6



S34 sets out the definition, with the main difference from the SST being that the lease is for a term of not less than six months. The landlord must also serve a notice, in the prescribed form, on the prospective tenant, and one of the grounds on which a short assured tenancy may be granted must be satisfied – sch 6. See SI 2002/315 fore prescribed form.



The tenant enjoys the same rights as SST, except termination of tenancy, succession and right to buy.

S35 allows an SSST to be converted to an SST.

S36 allows recovery of possession at the ish or before expiry of lease under same grounds as s14-16.



*Repairs* - In deciding whether a house is fit for human habitation, have regard to Buildng Regulation (Schedule 4, Para 5(1)). Reasonably fit for human habitation described in Morgan v Liverpool Corporation [1927] 2 KB 131 by Lord Atkinson:- ‘if the state of repair of a house is such that ordinary user damage may naturally be caused to the occupier, either in respect of personal injury to life and limb or injury to health, then the house is not in all respects reasonably fit for human habitation.’ This was approved in Summers v Salford Corporation [1943] A.C. 283. Thus, statutory phrase has a wide definition.

These cases do apply in Scotland – Haggerty v Glasgow Corporation1964 SLT (Notes) 95. See also s86 Housing (Scotland) Act 1987 for the ‘tolerable standard’ test which may be relevant in interpreting Sch 4 of 2001 Act, but failure to meet ‘tolerable standard’ does not in itself settle the habitability question.

See the difference between ‘repair’ and ‘improvement’ – Morcom v Campbell-Johnston [1956] 1 QB 106 per Lord Denning and ACT Construction Co v Customs and Excise Commissioners [1981] 1 W.L.R. 1542

Landlords need not be liable for repairs if:-

  • Damnum fatale – Acts of God.
  • Need for repair caused by tenant failing to use premises in proper manner.
  • Tenant entitled to remove item from building.
  • Voluntary acceptance of risk from tenant
  • Under some circumstances, not liable for acts of third parties.
  • Generally, needn’t carry out repairs until notified that repairs needed. Then it must be done within a reasonable time period depending on circumstances.



Overcrowding



No more than 5 ½ people in a 2 bedroom flat. But, Children under 1 = 0 people. Children 1-10 = ½ person. Therefore in a 2 bedroom flat you could have two adults, two teenagers, 3 children 1-10 and baby triplets. This, according to the law is not overcrowded!

There are also ‘under-crowding’ rules for SSTs.

Grounds for Eviction

Rent Arrears – Court may only grant eviction where it thinks it is reasonable.

Anti-Social Behaviour – if someone living in/visiting house has been convicted of using house for illegal/immoral purposes, or convicted because of an offence committed in/around house for which they could be sent to jail, court may grant eviction if reasonable. Anti-social behaviour by someone living/visiting, and it’s not reasonable for landlord to make other accommodation available, the court may grant eviction if reasonable. However, if as previously but landlord’s view is to move tenant to another of landlord’s houses, court may grant eviction if believes grounds for eviction proven - no need for reasonableness.



Defending Eviction

  • Denial that ground for eviction exists
  • Pre-court notices not valid/haven’t been served.
  • Not reasonable to evict (anti-social behaviour)
  • Not reasonable to evict (rent arrears) See 2001 Act and SEDD Circular 6/2002.
  • Ground cannot be proved
  • Human Rights defence


3. Assured Tenancies

Housing (Scotland) Act 1988, Part II



Point to note:-

  • Lesser degree of security of tenure than regulated tenancies had
  • Rent to be increased at the market value rate, rather than the system of fair rents- see formula in s24(5)
  • Housing associations fall in to (short)assured tenancies.
  • Only spouses and co-habitants may succeed on death of tenant – see S31.
  • It is the duty of the landlord in every assured tenancy of any duration to draw up a document stating terms of lease and to provide tenant with a copy.
  • Rent may be increased by mutual agreement, by notice under s24 or the contractual formula.
  • No obligation to have smoke alarms fitted unless HMO.



S12 sets out the definition – exceptions in Schedule 4.

S18-20 and Sch 5 sets out requirements for the recovery of possession – not Part I of the Schedule sets out grounds whereby Sheriff must order recovery of possession.





4. Short Assured Tenancies

Housing (Scotland) Act 1988 S32-35



A short assured tenancy is an assured tenancy of not less than 6 months, where the relevant statutory notice has been served.

*See the Assured Tenancies (Forms) (Scotland) Regulations 1988 SI 1988/2109.*





*Repairs* Housing (Scotland) Act 2006 Chapter 4 Part 1 (codifies existing common law and statutory provisions relating to repair and maintenance with some new additions.)

S13 – definition of repairing standard. The ‘obligation to ensure’ is strict both before lease commences and throughout tenancy – s14.b S15 deals with the exceptions to the landlord’s repairing duty, which is effectively the common parts of the building where the tenant cannot show that the area in disrepair is an area which s/he is entitled to use – see also s16(4) on this matter.

N.B for Points 1-4 above, also be aware of Occupiers Liability (Scotland) Act 1960 for non-contractual liabilities which also protect visitors to the property.

Grounds for Eviction

Rent Arrears – Persistent delay in paying rent or rent remains unpaid, court may grant eviction if reasonable. If rent more than 3 months late, court will grant decree if grounds proven. However, check current law on housing benefits- may need to have reasonableness if on housing benefits Housing Etc. (Scotland) Act 2003.

Anti-Social Behaviour - if someone living in/visiting house has been convicted of using house for illegal/immoral purposes, or convicted because of an offence committed in/around house for which they could be sent to jail, court may grant eviction if reasonable. Anti-social behaviour by someone living/visiting then the court may grant eviction if reasonable.

Defending Eviction

  • Denial that ground for eviction exists
  • Pre-court notices not valid/haven’t been served.
  • Not reasonable to evict (rent arrears) See SEDD Circular 6/2002.
  • Not reasonable to evict (anti-social behaviour)
  • Ground cannot be proved
  • Human Rights defence
  • ‘Mandatory’ ground for ‘Recovery of possession’ i.e. ground 8 – 1) set-off and counterclaim i.e. that house not tenantable and habitable 2) terms in tenancy do not allow use of ground 8 3) housing benefits arrears – check if s12 of 2003 Act in force yet.
  • Tenants’ Remedies re Repairs Generally



Tenant’s duty to notify landlord, in writing preferably, of need to repair.

If landlord fails to comply within a reasonable time period, tenant has number of options:-

  1. Implement – Action for Specific Implement in Sheriff Court. Remedy rarely awarded.
  2. Damages – Can be claimed under a) Damage to Property b) Abatement of rent c) Inconvenience d) Personal illness. All compensation based on landlord’s breach of common law, contractual or statutory obligations.
  3. Self Repair – At common law the tenant has the right to carry out repair, unless excluded by contract when the landlord has persistently delayed or refused to carry out repair; or where there is an emergency situation and a simple ‘first aid’ repair would prevent loss or damage to the property. *Must be sure landlord legally responsible for said repair, otherwise money will not be re-imbursed. See relevant Acts above.*
  4. Withholding Rent – At common law, the tenant can delay paying rent until landlord repairs, or use withheld rent to pay for the repair. It is now possible to exclude this right under tenancy agreement.
  5. Private sector tenant may complain to Private Rented Housing Panel.

Created under 2006 Act, can look at rents (both fair and market value) and repairing standard obligations. Have the power to make a Repairing Standard Enforcement Order. See the Private Rented Housing Panel (Applications and Determinations)(Scotland) Regulations 2007 (SI/2007/173). Expenses are not awarded.



Regulatory Law and Remedies

Local authorities have certain powers to supervise the standard of repair and habitability, mainly in private housing.

  1. Repairs Notices – 1987 Act Part V
  2. Closing and Demolition Orders – 1987 Ac Part VI
  3. Improvement Orders – 1987 Act S88
  4. Additional Powers – Civic Government (Scotland) Act 1982 and Buildings (Scotland) Act 1959
  5. Improvement Grants – 1987 Act Part XIII S236-247
  6. Repairs Grants – 1987 Act Part XIII s248
  7. Thermal Insulation Grants – 1987 Act Part XIII a252-253
  8. Statutory Nuisance under the Environmental Protection Act 1990