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

Model Short Scottish Secure Tenancy Agreement

4. LEGAL COMMENTARY ON MODEL SHORT SCOTTISH SECURE TENANCY AGREEMENT

INTRODUCTION TO THE SHORT SCOTTISH SECURE TENANCY

1. The short Scottish secure tenancy (short SST) is based on the Scottish secure tenancy. Both are introduced by the Housing (Scotland) Act 2001 ("the Act"). The majority of tenancies that social landlords will offer to their tenants will be Scottish secure tenancies. In a relatively small number of cases, social landlords will be entitled, but not obliged, to offer a prospective tenant a short SST instead. The circumstances in which this may be done are set out in Schedule 6 to the 2001 Act. In summary they are:

• Tenant has had order for repossession made against him/her in the UK on the grounds of anti-social or similar behaviour in previous 3 years;
• Tenant or member of household is subject to an anti-social behaviour order ("ASBO"). (Note that The Housing (Scotland) Act 2001 (Commencement No. 5, Transitional Provisions and Savings) Order 2002 provides that this will not apply in the case of an order made before 30 September 2002 and which continues after that date;
• Temporary letting to person moving into the area to seek accommodation;
• Temporary letting pending development of the principal house;
• Temporary letting to homeless person;
• Temporary letting for person requiring housing support services;
• Landlord has leased the house and the terms of the lease preclude sub-letting under a Scottish secure tenancy.

In the first two cases, the tenancy is effectively a "probationary" tenancy: see further paragraph 5 below. Unless the let falls into one of these categories, a short SST cannot be granted. The prospective tenant has a right of appeal to the sheriff against being offered a short SST or occupancy agreement instead of a Scottish secure tenancy or short SST, as the case may be (s38). The sheriff may order the landlord to let the house offered under a different agreement if s/he considers that there are "good grounds" for doing so.

2. It should be noted also that a short SST may come into being by operation of s35. That section provides that a Scottish secure tenancy will convert into a short SST where the landlord serves a notice on the tenant to that effect. The landlord may only do so where the tenant or a member of the household is subject to an ASBO. (See paragraph 1 above for transitional provisions). In that circumstance, the short SST may convert back to a Scottish secure tenancy at a later stage if certain conditions are met (s37). This is explained at paragraph 6.10 of the Model. If the tenancy does convert into a short SST, there is no statutory obligation to provide a fresh tenancy agreement such as one based on this model. There is a right of appeal (s35(5)) by way of summary application to the sheriff by a tenant who has been served with a notice converting the SST to a short SST. 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). The sheriff may grant the appeal if s/he is satisfied that there are "good grounds" for doing so.

3. The other conditions for the creation of a short SST are provided for in s34. In summary they are as follows:

• the tenancy would have been a Scottish secure tenancy were it not for s34. That is, the requirements for the creation of a Scottish secure tenancy (see s11) must be met;
• the tenancy is for a fixed term of at least 6 months. There is no maximum period; and
• the prospective landlord has served a statutory notice on the prospective tenant before the creation of the tenancy (i.e. before the tenancy agreement is signed). The form of the statutory notice is found in The Short Scottish Secure Tenancies (Notices) Regulations 2002.

If the last two conditions are not met, the tenancy created will be a Scottish secure tenancy rather than a short SST.

4. The tenancy will continue for the fixed period agreed by the parties. At the end of that fixed period, unless the parties have taken steps to prevent tacit relocation, the tenancy will renew for the same period (or for one year if the initial period was longer than one year) and under the same terms. That process of tacit relocation may continue indefinitely. Alternatively, the parties are free to agree that the tenancy should be continued for some other period on the same or different terms (s34(5)). The parties are free to agree that it should continue for a period of less than 6 months. The tenancy will nevertheless continue to be a short SST (s34(5)).

5. A short SST will convert to a Scottish secure tenancy in limited circumstances (s37). The circumstances are that:

• the short SST has been granted as a "probationary" tenancy (see paragraph 1 above);
• or the short SST had been created by the service of a notice (see paragraph 2 above);
• and no notice of proceedings under s14(2) or s36(2) has been served in the 12 months following the creation of the tenancy;
• or if such a notice has been served, the notice has expired or been withdrawn or court proceedings were finally resolved in favour of the tenant.

The fact of conversion and the date of the conversion must be notified by the landlord to the tenant.

6. The rights of the short SST tenant are the same as for a Scottish secure tenant with the following differences, some crucial (see s34(6)):

• There is no right to buy.
• There is no right of succession.
• There is no express statutory right for landlord or tenant to terminate the agreement before the end of the agreed term (though see the contractual clauses at paragraphs 6.1 to 6.3 of the Model based on the common law).
• There is only limited security of tenure (s36(5)). The landlord does not require to prove a reason for seeking repossession or that it is reasonable that decree for repossession be granted unless the section 14 recovery route is used (see paragraph 6.4 of the Model for more explanation).
• The landlord must provide housing support services where a short SST has been granted on an ASBO ground or previous eviction ground (s34(7)). The services must be those the landlord considers appropriate to enable the conversion of the short SST to a Scottish secure tenancy. The Scottish Ministers may issue guidance on this (s34(8)).
• Members of the tenant's household have no right to have a notice of proceedings served on them (if the s36 recovery route is used) and have no right to be sisted as parties to the action.

It should be noted that a short SST landlord may also seek recovery of possession on the same grounds applicable to Scottish secure tenants (s34(6) and s36(7)).

INTRODUCTION TO THE LEGAL COMMENTARY ON THE MODEL SHORT SST

1. This commentary, in the form of notes, are intended to assist in understanding the content of each paragraph in the Model Short Scottish Secure Tenancy Agreement (referred to below as the "Agreement"). They are designed for the use of landlords, housing professionals and lawyers and advisors. They reflect the author's understanding of the law as at July 2002. At the time of writing, much of the secondary legislation had been made. In addition to the Commencement Orders, the principal Orders are as follows: The Scottish Secure Tenants (Compensation for Improvements) Regulations 2002 No. 312; The Scottish Secure Tenancies (Abandoned Property) Order 2002 No. 313; The Scottish Secure Tenancies (Exceptions) Regulations 2002 No. 314; The Short Scottish Secure Tenancies (Notices) Regulations 2002 No. 315; The Scottish Secure Tenants (Right to Repair) Regulations 2002 No. 316; The Housing (Right to Buy) (Houses Liable to Demolition) (Scotland) Order 2002 No. 317; The Housing (Scotland) Act 2001 (Scottish Secure Tenancy etc.) Order 2002 No. 318; The Short Scottish Secure Tenancies (Proceedings for Possession) Regulations 2002 No. 319; The Scottish Secure Tenancies (Proceedings for Possession) Regulations 2002 No. 320(C. 16); The Housing (Scotland) Act 2001 (Commencement No. 5, Transitional Provisions and Savings) Order 2002 No. 321; The Right to Purchase (Application Form) (Scotland) Order 2002 No. 322. These Notes are not intended to be a comprehensive and authoritative interpretation of the law. They do not in any way form part of the Agreement. Neither are they intended to be used as an aid in the construction of the Agreement by the courts or tribunals. They are not intended to be given to each new tenant. They could be provided, on request by a tenant, free of charge. The numbering of the notes coincides with the paragraphing of the Agreement itself.

2. The parties' legal obligations and rights derive from the common law as well as statute. The principal statutory sources are the Housing (Scotland) Acts 1987 and 2001. All references in these notes to the 1987 and 2001 Acts are to those Acts. Also of importance is the Matrimonial Homes (Family Protection) (Scotland) Act 1981. Further elucidation may be derived from the extensive references contained in the notes or from the standard textbooks.

3. See Section 1 paragraph 1.1 for explanation of the use of bold, italics, ordinary typeface and square brackets [ ] in the text of the Agreement. References to paragraphs are to paragraphs in the Agreement. All references to sections and schedules are to the 2001 Act unless otherwise stated.