8. Heritable Property
Section 5 of the 2014 Act removes the previous prohibition on taking ownership of property into account in allocating social housing. This section covers what landlords can and cannot take into account.
By working through this section readers will:
- understand the changes around heritable property brought in by the 2014 Act.
- be aware of issues to consider when deciding whether to include the heritable property provisions in an allocation policy.
8.1 Legislation relating to heritable property
Section 5 of the 2014 Act removes the previous prohibition on taking ownership of property into account in allocating social housing. Social landlords can now consider property ownership as part of assessing an applicant's housing needs and their circumstances. This applies to the ownership of, or value of, heritable property owned by the applicant, a person who normally resides with the applicant, or a person who it is proposed will reside with the applicant. Landlords can decide to take property ownership into account, but they do not have to do so.
Heritable property includes land, as well as anything built on land, and can be property currently owned in Scotland, the rest of the UK or abroad. This means that if the applicant, or a current or future member of the household, currently owns land or property or previously owned land or property, this can be considered when deciding on an applicant's priority for the allocation of social housing. This applies to existing tenants looking for a transfer as well as new applicants.
There are circumstances under which heritable property cannot be taken into account. These are:
- in cases where the property has not been let, but the owner cannot secure entry to the property. This could, for example, be where it is not safe to enter the property due to severe structural faults or where there are squatters living in the property;
- where it is probable that occupying the property will lead to abuse from someone currently living in the property;
- where it is probable that occupying the property will lead to abuse from someone who previously resided with the applicant whether in that property or elsewhere; and
- where occupation of the property may endanger the health of the occupants and there are no reasonable steps that can be taken by the applicant to prevent that danger.
This would mean, for example, that a landlord could not take into account someone owning a home with an abusive partner if that partner continues to live in the property. It would also mean that if someone owned a property that was in very poor repair and dangerous to occupy, a landlord could not take that ownership into account if the applicant does not have the resources to rectify the problems.
However, if an owner occupier does have the resources to rectify the problems, or in time will be able to retake possession of their home, Section 8 of the 2014 Act gives landlords the ability to grant a short Scottish secure tenancy (short SST) to homeowners, to allow their housing needs to be met by a temporary let. Further information on the circumstances in which landlords can grant short SSTs to homeowners, and the processes for doing so, is available in the guidance on The Short Scottish Secure Tenancy for Homeowners. The Guidance on the Scottish secure and short Scottish secure tenancy provisions of the Housing (Scotland) Act 2001 is available from the Scottish Government's website at: https://www2.gov.scot/Publications/2002/08/sst/0
8.2 Deciding to take heritable property into account
Deciding to take heritable property into account may be relatively resource intensive and each landlord will want to think carefully about whether it will bring sufficient benefits to justify that potential use of resources.
If considering using the heritable property provision, a landlord will want to consider:
- whether they know or think there could be a problem?
- what, if anything, do they know about those owning heritable property applying for and/or being offered tenancies?
If a landlord is not aware of there being any issues, or it thinks there may be an issue, but are not clear about the nature of the problem and/or any impact it is having, it may decide not to take property ownership into account.
Where a landlord thinks there might be an issue, it might decide to start gathering information about property ownership from applicants and those being offered a tenancy to inform a future review of whether it will take property ownership into account in its allocation policy.
If a landlord knows or thinks that it has a problem with those owning heritable property applying for and/or being offered tenancies, it may wish to consider:
- which type(s) of applicants are affected?
- what type of heritable property do they own/have they owned? Where is/was that property?
- what types of housing need do they have? Do they tend to receive a level of priority under the current allocation policy? If so, why?
- are they receiving offers of housing and if so under what types of circumstances? Are they only receiving offers where demand is relatively low?
At this stage a landlord may consider whether the problem is sufficient to introduce a heritable property provision into its allocation policy. If it decides to do so, it will be important to be clear about the issues the provision is seeking to address. For example:
- is the landlord interested in any type of heritable property, past or present, in any location?
- is it interested in the heritable property of any member of the household or only the applicant(s)?
A landlord might, for example, decide that it is only interested if the applicant(s) currently own a residential property or currently owns a residential property that meets their needs. The landlord might also decide that the location of that property will be considered. For example, if an applicant owns a property in a remote rural location or outwith the UK but has applied for housing in the landlord's city, it might or might not take that property into account.
Equally, there may be circumstances under which letting properties to those who own/owned a property may still be in the best interests of a landlord. For example, if people who own a property elsewhere are willing to take a property that is otherwise hard to let, would a landlord want to prevent them from doing so?
Once a landlord has defined the problem they are seeking to address, they will need to decide what their policy will be. For example:
- will the landlord have a blanket policy, or will it take the circumstances of each case into account? If it is going to take each set of circumstances into account, who will decide when to take property ownership into account and how will the landlord ensure its decision-making is transparent?
- will the policy be based on reduced priority but still allow for a possible offer of housing? An example of this could be giving a lower level of priority to applicants who own their own home. This might take the form of lower points levels or a reduced priority under a CBL system.
- will conditions be placed on property owners, such as requiring them to sell or to try to sell? What will the landlord do if the applicant cannot or will not sell?
Whichever approach a landlord chooses, it must ensure that its policy and processes ensure that property ownership is not taken into account under the circumstances set out in Section 7.
Landlords will also need to decide when they will ask applicants for information on ownership of heritable property and whether and to what extent they will carry out any checks to verify the information provided.
Landlords will need to consider the staff time required to undertake checks. Being clear about the type of property that will be taken into account should help minimise administrative time spent.
Section 5 of the 2014 Act removes the previous prohibition on taking ownership of property into account in allocating social housing. Social landlords can consider property ownership as part of assessing an applicant's housing needs and their circumstances, but they do not have to do so.
There are a series of circumstances under which property ownership cannot be taken into account. These include where the owner cannot secure entry to the property or where it is probable that occupying the property will lead to abuse from someone currently living in the property.
Deciding to take heritable property into account will require resources to verify ownership, and landlords will want to think carefully about whether it will bring sufficient benefits appropriate to the resources required.
Email: Claire McHarrie