Short Scottish secure tenancy (antisocial behaviour related grounds): model agreement 2019

1. Purpose And How To Use The Model

1.1 A Model Short Scottish Secure Tenancy Agreement^[1] ("the 2002 Model") was published by the former Scottish Executive in 2002 following the introduction of short Scottish secure tenancies in the Housing (Scotland) Act 2001 ("the 2001 Act"). The 2002 Model has now been replaced by 2 new Model Short Scottish Secure Tenancy Agreements for tenancies created on or after 1 May 2019. These are:

• A Model Short Scottish Secure Tenancy Agreement (antisocial behaviour related grounds)^[2] this Model; and
• A Model Short Scottish Secure Tenancy Agreement (grounds unrelated to antisocial behaviour)^[3].

1.2 The Housing (Scotland) Act 2014 ("the 2014 Act") introduces changes to the way a short Scottish secure tenancy created on any of the antisocial behaviour grounds^[4] must be operated. These changes mean that many of the rules for operating a short Scottish secure tenancy for antisocial behaviour are now different to the rules for operating other types of short Scottish secure tenancies^[5]. In addition, the 2014 Act introduces significant changes to the rights tenants have under the terms of a short Scottish secure tenancy. As a result, 2 revised Model Short Scottish Secure Tenancy Agreements have been produced.

1.3 This revised Model Short Scottish Secure Tenancy Agreement (antisocial behaviour grounds) has been prepared on behalf of the Scottish Government to reflect the changes introduced by Part 2 of the 2014 Act. It will assist social landlords to revise their own tenancy agreements for use from 1 May 2019 onwards when most of the provisions in the 2014 Act come into force. The revised Model also takes account of the 2014 Act provisions on assignation, subletting and joint tenancies which come into force from 1 November 2019.

1.4 Whilst the 2002 Model should no longer be used by social landlords as a basis for their own tenancy agreements from 1 May 2019 onwards, landlords may still find the Legal Commentary^[6] provided at Section 4 of the 2002 Model useful (they should however seek independent legal advice if they are unsure on any particular issue).

1.5 The revised Model Short Scottish Secure Tenancy Agreement (antisocial behaviour related grounds) follows the same approach as the 2002 Model. There are three categories of clause in the Model which are as follows:

• The first category is the Core clause. This represents a summary of the landlord and tenant's core rights and obligations set out in the 2001 and 2014 Acts and other relevant housing legislation. These Core rights include, for example, security of tenure. These clauses are mandatory and are indicated in bold.
• The second category is those clauses which replicate, in a contractual way, the common law rights and obligations in respect of repairs, maintenance and use and care of the house. These clauses are also mandatory and are indicated in italics. (Where clauses are bold, and in italics, the source is both the common law and statute).
• The third category of clause is optional. It deals with a variety of minor matters that landlords may or may not wish to include. It also includes optional wording to supplement the statutory and common law position that some landlords may wish to include. These clauses are indicated in ordinary typeface. Clauses in square brackets [ ], indicate clauses with options depending on local arrangements (such as frequency of rent payments).

1.6 A number of clauses derive from other statutory sources not specific to housing law but are not part of the Core rights. These are not highlighted in the text. Reference is made to them in the Legal Notes in the 2002 Model^[7]. It is recommended that such clauses be maintained in any short Scottish secure tenancy agreement.

1.7 Landlords are free to add other clauses to their own tenancy agreement or vary them so long as the requirements of the 2001 Act, the Housing (Scotland) Act 2010 and the 2014 Act and are met.

Formation of a Short Scottish Secure Tenancy

1.8 Before the creation of a short Scottish secure tenancy, the prospective landlord must serve on the tenant a statutory notice complying with section 34(4) of the 2001 Act and The Short Scottish Secure Tenancies (Notice) Regulations 2018^[8]. If that is not done, no short Scottish secure tenancy is created. The tenancy will be a Scottish secure tenancy. Service of the notice can be done in the ways specified in section 40 of the 2001 Act. It may be served on the tenant(s) during the signing up process as long as the service is done before the parties sign the Agreement. However, as good practice, landlords should serve the notice a day or more before the creation of the Agreement wherever feasible.

1.9 Where the statutory notice under section 34(4) of the 2001 Act is served prior to 1 May 2019, the Short Scottish Secure Tenancies (Notices) Regulations 2002 continue to apply^[9] and the terms of that short Scottish secure tenancy will also be those that were in place at the time the notice was issued, even if the short Scottish secure tenancy itself is granted on or after 1 May 2019^[10].

Legal Commentary/Understanding the Content of the Model

1.10 The legal commentary accompanying the 2002 Model Short Scottish Secure Tenancy Agreement was designed to assist the reader in understanding the content of each of the clauses when the tenancy agreement was first introduced^[11]. This legal commentary has not been up-dated. Information about the changes to tenant's rights is however available in Part 2 of the 2014 Act^[12] and in the accompanying Explanatory Notes to the Act^[13].

1.11 There is also secondary legislation and guidance applicable to short Scottish secure tenancies and the 2014 Act as follows:

Secondary Legislation

• The Housing (Scotland) Act 2014 (Commencement No. 8, Savings, Transitional and Supplemental Provisions) Order 2018^[14]
• The Short Scottish Secure Tenancies (Notice) Regulations 2018^[15]
• The Short Scottish Secure Tenancies (Proceedings for Possession) Regulations 2018^[16]

Guidance

• Short Scottish Secure Tenancies for Antisocial Behaviour and Other Miscellaneous Changes to Short Scottish Secure Tenancies - Statutory Guidance for Social Landlords^[17]
• Streamlined Eviction Process – Criminal or Antisocial Behaviour - Statutory Guidance for Social Landlords^[18]
• Assignation, Subletting, Joint Tenancies and Succession – Guidance for Social Landlords^[19]
• The Short Scottish Secure Tenancy for Homeowners – Guidance for Social Landlords^[20]

Summary Model Short Scottish Secure Tenancy Agreement

1.12 The 2002 Model contained a summary version covering the main terms. The summary version has not been revised to reflect the changes in the 2014 Act as over time landlords have developed their own tenancy information in clear and easy to use formats.

Disclaimer

1.13 The revisals have been made by Addleshaw Goddard LLP on behalf of the Scottish Government based on the terms of the Housing (Scotland) Act 2014. This does not constitute legal or other professional advice. Anyone using this Model Short Scottish Secure Tenancy Agreement should always seek detailed advice from their own solicitors if they require any clarification on the legal position or advice on how to apply the law and use this Model Short Scottish Secure Tenancy Agreement in relation to their particular situation.