Housing (Scotland) Act 2001: model short Scottish secure tenancy agreement

Sample tenancy document for the use of landlords and tenants.

Model Short Scottish Secure Tenancy Agreement

Note 6.3: Whereas there is specific statutory authority for the termination of a tenancy by agreement in the case of the Scottish secure tenant, that authority is removed in the case of the short SST tenant: s34(6)). At common law, the tenant may renounce the tenancy during the term of the tenancy expressly or by implication: Rankine: Chap XX. It is a matter for the landlord whether it accepts the renunciation (in which case, without more, it is held to have waived any future rights under the tenancy) or it does not (in which case it may elect to hold the tenant to his/her obligations under the tenancy (such as payment of rent (subject to the common law requirement to mitigate its loss)).The purpose of this paragraph, which is contractual (although based on the common law principles noted above), is to enable the parties to agree that the tenancy should come to an end at any time. It is thought that as the consent of both parties is required before the tenancy can be terminated in this way, s34((1)(b) (minimum term of
6 months) is still fulfilled and that this provision of itself does not prevent the tenancy being a short Scottish secure tenancy. See also Note 6.1.

Note 6.4: See s36. This is the primary route intended by the legislation for landlords who seek to recover possession of a house let under a short SST. The provisions are closely modelled on those relating to short assured tenancies: see section 33 of the Housing (Scotland) Act 1988. The intention of the legislation is that so long as the landlord can demonstrate that the four conditions have been complied with (see further in this Note), the court is obliged to grant decree for recovery of possession. The landlord does not require to prove a reason for wishing to recover possession. Neither does the landlord have to satisfy the court that it is reasonable to grant decree. S36 is designed to deal with the situation where the original term of the tenancy has expired (or any continuation thereof). Where the landlord wishes to recover at any other time (for example because of rent arrears during the term of the tenancy), the landlord may use the alternative route provided by s14: see Note below and s36(7).

The first condition is that the tenancy has reached the ish originally provided for in the tenancy agreement: see paragraph and Note 1.4. In other words, the landlord is not entitled to use the s36 route where the tenancy continues during the initial fixed period.

The second condition is that tacit relocation is not operating. Tacit relocation (literally, "silent renewal of lease"), in this context, is the common law rule whereby a lease will, by operation of law, be treated as automatically renewing itself for the same period (or for a year if that period is greater than one year) and on the same terms, unless either of the parties have taken steps to prevent tacit relocation from operating (See Rankine on Leases, Chap XXII.). Tacit relocation will be barred by the parties agreeing before the ish that the tenancy agreement is to be renewed on terms different from that originally agreed (for example, the lease is to continue month to month after the ish. Such a tenancy would still be a short SST: s34(5)). It would also be prevented by the parties agreeing in the tenancy agreement that following the expiry of the initial period, the tenancy would continue for some other period. Tacit relocation is also prevented by the service of a valid notice to quit. The third condition is that no further contractual tenancy is in existence. The parties may have expressly agreed to renew the tenancy or innovate on it. Alternatively, the actings of the parties (for example, in some circumstances, the acceptance of rent after the ish) may give rise to the implication that the parties have set up a new contract. A new agreement may be a short SST or a Scottish secure tenancy. It is highly unlikely to be anything else.

The fourth condition is that a valid statutory notice of proceedings under s36(2) has been served. See The Short Scottish Secure Tenancies (Proceedings for Possession) Regulations 2002.

Note 6.5: See s14 and 16. This is the alternative route that a landlord may take instead of that in paragraph 6.4: see s36(7). This is the usual route which requires to be followed in the case of Scottish secure tenancies. The main difference is that the court always retains discretion whether to grant decree since it has to be satisfied that it is reasonable to do so. Furthermore, the landlord must prove one of a number of grounds for seeking repossession. The grounds for eviction are all those contained within Schedule 2. See s14 to 16. Note that the statutory notice of proceedings (s18(1)) is different from the s36(3) notice. In relation to the final bullet point, it should be noted that the co-habitee must have resided in the house for 6 months before the application for the transfer. Note also that the statutory notice referred to here is different from the one that applies when the mandatory repossession route is used: see Note 6.4 above. This notice must be served on all "qualifying occupiers" (s 14(6)) which are indicated in the paragraph. See The Scottish Secure Tenancies (Proceedings for Possession) Regulations 2002. The landlord must first have made such enquiries as may be necessary to establish, so far as reasonably practicable, whether there are qualifying occupiers, and if so, their identities.

Note 6.6: See ss17 and 19. Regulations made under s18(4) deal with the storage of any property left in the house by the tenant: They are found in The Scottish Secure Tenants (Abandoned Properties) Order 2002. That Order provides that all property found in a house which has been abandoned must be kept for a minimum period of 28 days and a notice must be given telling the tenant that. After the 28 days, if the property is not collected, it may be disposed of unless its value is greater than the cost of storing, in which case, it must be kept for a total period of at least 6 months.

Note 6.7: Whereas there is specific statutory authority for the termination of a tenancy by death in the case of the Scottish secure tenant (assuming that there is no statutory successor: s12(1)(c) and s22), that authority is removed in the case of the short SST tenant: s34(6)). The common law is that unless the terms of the tenancy provide that death terminates the tenant's interest: the tenant's interest devolves to his/her estate and is then distributed in terms of the law of succession. That broad position was preserved by statute with various qualifications and further provisions: ss16, 29 Succession (Scotland) Act 1964. In the case of intestacy however, where there is express prohibition of assignation, the consent of the landlord is required before the executor can transfer to a person entitled under the rules of intestacy. This rule applies also in the case of at least some statutorily protected tenancies: (or else there would be no need for ground 7 in the case of assured tenancies: see Schedule 5, 1988 Act). In Scotland, the Court of Session has been prepared to find that a statutorily protected lease might have been capable of succession: Muir v. Arrol 1954 SC 306 (although it did not need to make such a ruling for other reasons) and that a statutorily protected tenancy might devolve, on the death of the tenant, either by operation of the succession provisions contained within the Rent Acts, or through operation of the usual rules of succession. Leases which are pure creatures of statute, rather than contractual tenancies given special protection by the Housing Acts, (such as statutory assured tenancies), probably cannot be succeeded to: see discussion in Megarry: The Rent Acts (11th ed.). However, a short Scottish secure tenancy is not a pure creature of statute in the same way as a "statutory tenancy" under the Rent (Scotland) Act 1984 (and its predecessors) or a statutory assured tenancy under section 16 of the Housing (Scotland) Act 1988. It is by definition a contractual tenancy which acquires certain statutory protection if certain conditions are met (in the same way as other contractual tenancies acquire certain protection under other Housing Acts). There is no recent authority on succession to statutorily protected leases. The 2001 Act makes no specific provision as to succession so that while it is clear that there is no statutory right of succession, it is not entirely clear whether the usual rule, being that death of the tenant does not ipso facto terminate a lease, will apply. The purpose of this paragraph, which is contractual, is that for the avoidance of doubt, on the death of the tenant, the lease terminates. The final sentence is optional and allows the surviving joint tenant to continue to occupy under the tenancy.

Note 6.8: See ss20 and 21.

Note 6.9: See s13.

Note 6.10: See s37, Schedule 6(1), (2) and the Notes in the Introduction to the short SST above with regard to the creation of the short SST.

The intention of this paragraph and s37 is that in three cases, the short SST may convert automatically into a Scottish secure tenancy after a period of time. Those three cases are summarised in paragraph 6.10 of the Agreement. The first bullet point is a reference to Schedule 6(1). The second bullet point is a reference to schedule 6(2) and the third is a reference to s35. The SST in that case, is converted to a short SST immediately the landlord serves a notice on the tenant conforming to s35(3). Such a notice may only be served where any of the tenants, lodgers, subtenants (or anyone residing with the tenant) is subject to an anti-social behaviour order under s19 of the Crime and Disorder Act 1998. The tenant has a right of appeal against such a notice to the sheriff by way of summary application. In terms of Rule 2.6 of the Summary Applications, Statutory Applications and Appeals etc. Rules 1999 (SI 1999/929), that appeal must be made within 21 days after the date of intimation of the decision to the tenant. However, the sheriff has the power to allow the summary application to be heard out of time if "special cause is shown".

In effect, this provision creates a "probationary tenancy". The probationer has 12 months to show their good behaviour. If in that time, no notice of proceedings has been served (under either s14(2) or s36(2), and in the former case, under any ground, not just behaviour grounds), the tenancy will automatically convert into a Scottish secure tenancy on the expiry of 12 months. If however, such a notice is served during that period, the tenancy will not automatically convert at the end of the 12-month period. It will only convert if the notice expires without proceedings having been commenced (the notices have a 6-month validity), the notices are withdrawn or if any court proceedings are finally resolved in favour of the tenant and at least 12 months have passed since the creation of the tenancy. The reference to court proceedings includes the exhaustion of all appeal routes. If after such action, the tenancy does convert, the date of the conversion (providing that 12 months have passed since the creation of the tenancy) is the date on which proceedings were finally resolved, the date on which the notice expired or the date that the notice was withdrawn, whichever the case may be. The landlord must advise the tenant, preferably in writing, of the date of conversion. The landlord has a duty in the case of "probationers" to ensure that "housing support services" are provided, either by itself, or through some other agency: s34(7). The Scottish Ministers may issue guidance as to the housing support services which are appropriate: s34(8). See s91(8) for the definition of housing support services.

Note 6.11: This contractual paragraph fulfils three main functions. First, a reminder to the tenant as to what s/he is legally obliged to do. Secondly (points 4, 7, 10) the landlord gains a contractual right which will assist in the process of reletting and dealing with outstanding tenancy matters. Although the tenant has no common law or statutory obligation in respect of these three matters, it is submitted that these are reasonable requirements to impose. Thirdly, the tenant is reminded of the need to claim compensation for improvements done.

Note 7.1: Gloss on the statutory position. The last sentence refers to s21(6) of the 1987 Act.

Note 7.2: The first sentence applies to local authorities only: see s17A of the 1987 Act as amended by the 1993 Act. The second sentence applies to all Scottish secure landlords: s23(4). Since tenants under a short SST do not have the right to buy, it is thought that the statutory obligation to provide information to the tenant before the creation of the tenancy about the likely obligations that the tenant would incur were such a right to be exercised does not arise since there is no right to be exercised in relation to that house. It should be noted however, that the status of some short SSTs may change to Scottish secure tenancies (see Note 6.9 above). If that occurs, the tenant would have the right to buy from the date of conversion (subject to the other rules: see Part 2, Chap 2 of the Act). In that case, the tenant is entitled to information relating to the right to buy and likely consequences if that right is exercised.

Note 7.3: See s23(6) for all bullet points. See Note 7.2 in relation to the right to buy. The points made there apply in the case of information to be given on request equally.

Note 7.4: For first bullet point, see s54. For second bullet point see s25. For third bullet point, see s54 and s76. For fourth bullet point see17A(2) of the 1987 Act (local authorities only). For the remainder of the bullet points, see s54. Note that in terms of s53, landlords are under a duty to develop a tenant participation strategy. This strategy is to include consideration of the matters on which tenants and registered tenants organisations should be consulted. So, the list of matters in paragraph 7.4 on which tenants must be consulted is a minimum. This paragraph should therefore be amended by adding, on a local basis, those other matters on which it has been decided consultation will take place. It should also be noted that, in terms of s54(1), landlords are under a separate duty to consult with tenants and registered tenants organisations with regard to the matters referred to in s54(2). This duty is not referred to in the Agreement as it is not one which applies to the parties to this Agreement in their roles of landlord and tenant.

Note 8.1: As a matter of good practice, all landlords ought to have a clear comprehensive and accessible complaints procedure which is well publicised. It is expected that the regulator of social landlords will make this a requirement. Section 23 requires the landlord to provide the tenant with information about its complaints procedure.

Note 8.2: The complaints procedure should also make clear that the tenant has further recourse to an Ombudsman if still dissatisfied after going through the complaints procedure. The second sentence is optional.

Note 8.3: General. The right of a tenant to withhold rent on breach of contract by the landlord is a common law right which goes to the core of the contractual relationship between them.
At common law, the obligation to pay rent is suspended where the landlord has failed in its obligations. The tenant may withhold (or retain) the rent until the landlord's obligation is fulfilled or until an abatement of rent is allowed and its amount fixed (Gloag on Contract (2nd edition 1929) p628; Kilmarnock Light Co. v. Smith (1872) 11 M 58). The right to withhold (or retain) rent is most typically done where the landlord is in material breach of its repair obligations (Davie v. Stark (1876) 3 R 1114; Fingland and Mitchell v. Howie 1926 SC 319) i.e. it has failed to carry out repairs within a reasonable time. Where the tenant has lost possession of part or all of the house as a result of the landlord's breach (or through some other supervening circumstance not being due to the fault of the tenant), he may be entitled to an abatement (i.e. reduction) in rent (e.g. Stewart v. Campbell (1889) 16 R 346; Muir v. McIntyre (1887) 14 R 470). Thus, the tenant may not be required to pay the retained rent once the landlord has fulfilled his obligations and retention of rent intended to force the landlord to do repairs may turn into an abatement of rent for the period of disrepair (e.g. Renfrew District Council v. Gray 1987 SLT (Sh Ct) 70). The common law right to retain rent may be modified by contract (e.g. Glasgow Corporation v. Seniuk 1968 SLT (Sh Ct) 47). See also McBryde (1987) Contract, W. Green and Son, para 14.39 et. seq.
However, in this Agreement, the common law position has been modernised and modified by tying it in to the landlord's complaints procedure. All social landlords have one and are expected to have one by Communities Scotland. The modification to the common law right proposed in this paragraph is designed to achieve a reasonable compromise between the need for the tenant to have repairs done within a reasonable time and the need for the landlord to retain some control over how and when repairs are carried out on its properties and which type. The paragraph warns the tenant that legal advice should be taken before exercising this right. This is so that the tenant can check his/her legal position and in particular whether the landlord is indeed in breach of its obligation. It is only where the landlord is in breach of its obligations as set out in this Agreement that the right of the tenant to withhold rent arises. If the tenant withholds rent where the landlord is not in fact in breach of its obligations, the landlord may well succeed in an action for eviction based on rent arrears. The requirement that the tenant put the rent in an account and is in a position to evidence that is intended as a safeguard for both landlord and tenant although it is not, strictly speaking, a requirement at common law. This provision provides a certain protection to tenants to avoid the possibility of the tenant either wrongly withholding rent or misunderstanding the nature of the remedy. The tenant's rights to claim damages are not affected by this paragraph. Neither are the tenant's rights to obtain an order for specific implement, to complain to the Ombudsman or to exercise the common law right to do the repairs and deduct the costs from the rent (subject to the requirements of that right). In addition, the statutory right to repair (see paragraph 5.18) guarantees the right to have certain urgent repairs carried out swiftly. It is thought that in these circumstances, this adjustment to the common law right is fair, reasonable and proportionate and does not fall foul of the Unfair Terms in Consumer Contract Regulations 1999.

Note 9.1: See those parts of the legislation noted in the paragraph. The right to buy is dealt with in Part 2, Chap 2 of the Act which applies specifically to Scottish secure tenancies and not short SSTs. Only some rights of tenants under a Scottish secure tenancy apply to tenants under a short SST: see 34(6) and the Introduction to these Notes. The right to buy is not one of them.

Note 9.2: See s55.

Note 9.3: General. In terms of this Agreement, the tenant must obtain written permission before carrying out various activities, for example, making alterations or improvements, sub-letting and assignation. This paragraph summarises the procedure in all cases and the rights of appeal where they exist. That appeal must be within 21 days after the date of intimation of the notice, or a longer period if "special cause" is shown (Rule 2.6 of the Summary Applications, Statutory Applications and Appeals etc. Rules 1999 (SI 1999/929).

First bullet point. Permission is required for actions under the following paragraphs: 2.3 (business use); 2.5 (pets); 2.10/11 (cutting trees, etc.); 2.16 (parking); 2.17 (storage); 2.18 (change agreement re use); 4.1 and 4.2 (sub-tenant, lodger, assignation, exchange, joint tenant); 5.21 (alterations and improvements) The landlord, as a public authority, should not refuse permission unreasonably. That obligation is made statutory in respect of some of the permissions.

Second bullet point. Although there is no common law or statutory obligation to give reasons in all cases, the trend in administrative law is now toward implying that duty in an increasing number of situations (see generally: Clyde and Edwards (2000) Judicial Review p531). In addition, there is a statutory duty in respect of some of the permissions. It is only fair that the decision be given as soon as reasonably possible. In respect of some permissions, there is a statutory time limit.

Third bullet point. Any conditions which are made must, of course, be reasonable ones. Withdrawal of the permission should be on reasonable grounds.

Fourth bullet point. If there is no statutory remedy provided, the complaints procedure is available. This is without prejudice to any other remedy that the tenant might have.

Fifth bullet point. This procedure is created by Schedule 5, Part 2. Although the right to convert the tenancy to a joint tenancy given by section 11(5) does not explicitly refer to an appeals mechanism in the case of refusal (in the way provided for by s32), the appeals mechanism is available where the tenant "otherwise" wishes to "give up to another person possession of the house or any part of it" (s32(1)) which must include a joint tenancy.

Sixth bullet point. This procedure is created by Schedule 5, Part 1.

Seventh bullet point. This procedure is created by s26.

Note 9.4: The first sentence is contractual and is for clarification purposes. Landlords may wish, for administrative purposes to specify exactly where any communications should be made to it. The second sentence reflects the terms of s40 and refers only to notices and documents which are required or authorised to be given under Chapter 1, Part 2 of the Act. The third sentence is contractual. However, even if the landlord is not told by the tenant of another address, if the landlord does know of another address which is the last address of the tenant, (perhaps after enquiries with neighbours), it is to that address that documents and notices under Chapter 1, Part 2 of the Act should be given.

Note 9.5: On signing the Agreement, the tenant should also be provided with a copy of the Tenant's Handbook which, among other things, will contain the Summary version of this Agreement. The signing-up process is an important stage in the landlord/tenant relationship and provides a useful opportunity for the landlord to emphasise critical points. If the tenant was previously the tenant of the same house (i.e. the Agreement is being substituted for the pre-existing lease) the effect of signing the new Agreement is not to create a new tenancy, but to substitute new terms and conditions to an existing one. Therefore, any outstanding rights and obligations (for example in relation to legal action, rent arrears, etc.) continue. If the tenant is not already a tenant of the house, a new tenancy is created. The tenant's signature also acknowledges prior receipt of the s34(4) statutory notice that must be served prior to the creation of the tenancy. Landlords would be unwise to rely on this paragraph as the sole proof that such a notice was served. Unless the landlord, if challenged, can prove as a matter of fact that the statutory notice was served on the tenant in one of the ways provided for in s40, the tenancy will not be a short SST but will instead be a Scottish secure tenancy. Landlords should ensure therefore that there is proof of prior service of the notice.

Note to Signing Section
This paragraph, by itself may not be sufficient proof in practice. See also paragraph 1.4 of Section One to this document.
This form of execution is designed to provide a "self-proving" Agreement in terms of the Requirements of Writing (Scotland) Act 1995. That Act provides that tenancy agreements for one year or less do not require to be constituted in writing. However, s23(1) of the 2001 Act provides that the landlord must draw up a tenancy agreement (i.e. this Agreement) stating the terms of the tenancy, ensuring that before the commencement of the tenancy, it is subscribed by the landlord and the tenant in accordance with the 1995 Act and provide a copy of the agreement to the tenant. Thus, the agreement must be in writing. A version not in writing, such as Braille, disk or tape, will not do. Although there is nothing in law to prevent the parties making a written agreement in a language other than English, the practical and legal difficulties associated with translation and legal interpretation mean that the version that is binding on the parties must be in English. There are special provisions in the 1995 Act concerned with signing of agreements by those who cannot read or write (s9 and Schedule 3). There are also special provisions for signing by local authorities, companies and other bodies corporate (such as industrial and provident societies): (see Schedule 2, an authorised officer, among others, may do so on behalf of the organisation). Each signature must be witnessed. The same witness can witness all signatures. It may happen that all parties do not sign at the same time: hence the separate provision of witness signature for each party. The tenant must be given the opportunity of reading the Agreement if s/he wishes. If s/he is not given a fair opportunity of doing so, then this is a relevant factor in assessing the validity of any clause in the Agreement: see Unfair Terms in Consumer Contract Regulations 1999. Section 8(1) of the 1995 Act provides that any annexation to an agreement does not require to be signed or subscribed by the parties in order to be incorporated into the agreement as long as that annexation is referred to in the document and the annexation is identified on the face of it as being that annexation referred to in the agreement. Where, however, that annexation shows or describes part or all of the land, to be incorporated into the agreement, a plan, drawing or photograph must be signed by both parties on each page and a schedule, appendix or inventory must be signed on the last page. As a matter of good practice, it is suggested that nonetheless, 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 to this Agreement within it.

Derek O'Carroll, Advocate, July 2002


Email: ceu@gov.scot

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