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

Note 1.1: See the "Introduction to the short Scottish secure tenancy" above for the conditions for the creation of a short SST. Whether tenants are joint or not is initially a matter for the landlord's policy and tenant choice. However, the 2001 Act makes some important changes to the position after the commencement of the tenancy. Short Scottish secure tenants have the right to convert the tenancy into a joint one subject to the consent of the landlord which is not to be unreasonably withheld (see Notes 4.1, 4.2 below). In addition, new procedures are introduced for the termination of the interest of a joint tenant (see Notes 6.6 and 6.7). Joint tenancies have certain legal consequences; see paragraphs 1.11, 1.15, 6.1, 6.3, 6.5, 6.8-6.10.

Note 1.2: The specification of the accommodation is deliberately left broad since the Agreement requires to be capable of applying to all the landlord's houses. It will require amendment to deal with local circumstances. This paragraph is key since the accommodation let and specified here is the "house" for almost all purposes in the Agreement. It is a requirement for the creation of both the Scottish secure tenancy and the short SST that the house is "let as a separate dwelling" (s11(1)(a)). This phrase, which is found in various English and Scottish housing Acts was the subject of a decision in the House of Lords at the end of 2001: Uratemp Ventures Ltd v. Collins [2001] UKHL 43. The court held that even the bare let of a room without any cooking facilities or other shared facilities was capable of being a let of a separate dwelling. Whether a dwelling is a separate dwelling will always be a matter of fact. The decision did not deal specifically with the factual situation where a tenant shares living space and facilities with other tenants. The Act, unlike the Housing (Scotland) Act 1988 (see s14) does not make specific provision for the situation where a tenant shares some of the living accommodation with other tenants. Nevertheless, it is thought that in the light of the reasoning in the Uratemp decision, where the parties agree that the purpose of the letting is as a separate dwelling, there should be no bar on the landlords granting either a short SST or a Scottish secure tenancy. Thus, where the tenant previously held the accommodation (defined in this Agreement as a "house") under a secure or assured or short assured tenancy (all of which require that the house is let as a separate dwelling), there would be no reason in principle why that tenancy should not be converted to a Scottish secure tenancy or a short SST (as long as the statutory conditions for the creation of such a tenancy were satisfied). The last sentence has been inserted at the suggestion, made in 1996, of the Deputy Commissioner for Local Administration in Scotland who was concerned at the number of complaints received about boundary disputes. See case number 1174 for an example of such a dispute which had serious implications for both the local authority and the tenant. For resource reasons, the provision of the plan is not made mandatory although the Deputy Commissioner believes that it would be good practice.

Note 1.3: Here should be specified the full postal address, together with the postcode and flat position, if appropriate.

Note 1.4:The first clause: "This tenancy will start on..." should be used in the case of a person who was not previously a tenant of the landlord. The alternative in square brackets: "This Agreement takes effect from..." is designed for use (in what would probably be an unusual situation) for existing tenants as the Agreement in that case does not create a new tenancy, rather it modifies the terms of the existing tenancy: see paragraph 9.5. A short SST must be for an initial fixed period of at least 6 months (s34(1)(b)). There is no maximum period. If the tenancy starts, say, on 1 March, the earliest termination date, the ish, is 31 August (see e.g. Key Housing Association Ltd v. Cameron 1999 HousLR 47). At the end of that period, the tenancy will continue by operation of tacit relocation unless the parties agree otherwise. It should be noted that at common law, a lease will tacitly relocate for the period of the tenancy or one year: whichever is the lesser. It is envisaged that the vast majority of short SSTs will be for a fixed period of one year or less and the terms of the fourth sentence reflect that reality. If however, in the unusual case, the original term is for more than one year, and the landlord does not wish the Agreement to renew for the same term, appropriate changes should be made to the fourth sentence. The parties may agree that the tenancy continues for a further period different from the original term (s34(5)(b)). That period may be less than 6 months. The renewed or continued tenancy will nonetheless continue to be a short SST. There is no limit to how many times the tenancy may be continued and for it to remain a short SST (though see Note 6.10 below).

Note 1.5:This paragraph contains optional provisions to deal with varying practices regarding rental periods. The options are in square brackets. Rent is normally payable in advance, however, housing benefit is always paid in arrears. Approximately 70% of social tenants receive housing benefit. To insist on rent being paid in advance therefore raises the global figure for rent arrears and places tenants unnecessarily in arrears. Hence, a choice is provided.

Note 1.6:This paragraph is optional. It should be deleted if no services are provided. It is designed for services provided in connection with the house (e.g. gardening, cleaning) as well as for services specific to the occupant (some types of community care services e.g. counselling). The variety of services which are provided to houses and the tenants in them, and the way in which they are provided, varies tremendously from landlord to landlord and from house to house. Hence, this Agreement does not specify a particular form of words. The following is guidance on the expression of any provisions concerned with services.
Here, it is suggested that the services are to be set out in another agreement. This is permissible. It allows for greater flexibility which will be important in some situations. However, where possible, it is preferable to have the terms regarding services included in the Agreement itself rather than in another document. If they are to be included in another document, that other document should make explicit reference to this section of the Agreement and should itself be signed and dated by the parties (see further Note 9.5). The terms of the Agreement should make clear which services are compulsory and which (if any) are optional. For housing benefit purposes, it is important that the cost of the services is broken down with the cost for each service clearly identified. This is because for housing benefit purposes, some, but not all charges are eligible for rebate: see Housing Benefit (General) Regulations 1987 [as heavily amended] and in particular, Regulations 10(1)(e) (3)(c) and Schedule 1. There must be a legal obligation on the tenant to pay the service charges before there is any possibility of their qualifying as eligible rent for housing benefit purposes. The final words referring to housing support services are intended to deal with the change, from 1 April 2003, in the rules relating to payment for housing support services. From that date, housing benefit will not pay for certain services (such as counselling) to those who need support. Instead, the services will be provided via the local authority social work department and payment for any services will be made to them. This change does not affect other services provided by the landlord which are not for those with special support needs, such as stair cleaning and maintenance of the common parts. Those services will continue to be provided by the landlord and paid for by the tenant to the landlord. The provisions relating to service charges should not permit unilateral withdrawal or restriction of services by the landlord. This is because such a provision may contravene the requirement of fairness in the Unfair Terms in Consumer Contract Regulations 1999. The landlord and tenant of course could agree to a change in the services provided. Non payment of the service charges is a breach of the terms of the Agreement. The landlord's remedies include a small claims action in the sheriff court as well as proceedings for recovery of possession in serious cases. Changes in the charges are dealt with in the next paragraph.

Note 1.7:The consultation requirement is statutory where there is to be an increase for all or a class of tenants which will affect the tenants: section 25(4). The requirement is to give written notice to expire not earlier than 4 weeks before the beginning of the rental period on which the notice takes effect or the date on which rent is due to be paid if earlier. (See s25(1) and Note 1.4.). There is no statutory restriction on the number of times that rent and service charges may be increased and by how much. However, the third sentence which restricts increases, normally, to no more than one per 12 months is recommended good practice. Flexibility to increase more than once per 12 months is retained. The Tenant's Handbook should contain a section on claiming of Housing Benefit. The fourth sentence refers to the preservation of rights in respect of certain tenants in terms of Regulations made under section 11(2). The right of the tenant to a statement of the landlord's policy relating to rent and service charges is given by section 23. The right is on the request of the tenant.

Note 1.8:This paragraph makes clear the landlord's rights on breach of the Agreement. The right to claim legal expenses is restricted to judicial expenses; that is, the expenses of the court procedure as assessed (or "taxed") by the auditor of court.

Note 1.9: This is included for information only and does not have any contractual effect. Its purpose is to help make the document user friendly and indicate other sources of advice. It could go in the Tenant's Handbook.

Note 1.10: The first two sentences reflect good practice. The last sentence is to avoid difficulties arising from any conflict of interpretation. See also Note 9.5 (the signing section).

Note 1.11: Various words here are defined. The definitions apply to whole Agreement unless the context indicates that a different interpretation is required. The following is commentary on certain of the definitions:

"common parts": the definition adopted here is a comprehensive one and draws in part on Schedule 10(3)(1C) to the 1987 Act. That provision of the 1987 Act has been chosen rather than the reference to common parts contained in Schedule 2(3)(2) to the 2001 Act as that definition is one that refers back to a tenancy agreement. Thus, without a definition of the common parts in this Agreement, the definition of "common parts" would be circular. The definition may require to be adapted to suit local conditions. The definition is relevant to the house that is let (paragraph 1.2) as well as the repairing obligations (see paragraphs 5.4, 5.12). "Co-habitee" is the term adopted in the Agreement as a neutral way of expressing close relationships between two persons who are not married. The definition reflects that contained in s108 of the 2001 Act although the term co-habitee is not used in the legislation. The meaning of "family" is also taken from that section. Note that the definition of family includes the relatives of the spouse but not of a co-habitee. The definition of "overcrowding" is the statutory definition in s135 of the 1987 Act which is also referred to in the 2001 Act with reference to one of the grounds for eviction: see Schedule 2, Part 1(9). It has not been possible to accurately gloss the statutory definition. "Tenant" includes joint tenant: see s41. See further Note 2.1.

Note 1.12: The Agreement attempts to accurately state the statutory provisions relating to tenancies of this type. However, there will be cases where a reading of the statute (for example in relation to succession) might give a different result to a reading of the Agreement which attempts to reflect entirely, without variation, the statutory position. In any such case, the statutory provision takes precedence. However, there are many other terms of this Agreement which do not reflect the statutory provision because the legislation is silent in many areas. In such cases, the usual rules of interpretation of contracts apply including the rules to do with exclusion of common law rights and responsibilities.

Note 1.13: The effect of this paragraph is to make the tenant generally responsible for the actions of those living with him or her. This will help avoid the situation where a tenant claims that it is not him or her who is breaking the Agreement (for example, a son parks his caravan in an obstructive way) and the landlord might be otherwise powerless to remedy the nuisance. In various places, for the avoidance of doubt, the Agreement makes explicit the tenant's responsibility for the actions of those living with him or her. It will be for the sheriff in an eviction action to determine whether it is reasonable, in any given case, to evict the tenant for the actions of another member of the household.

Note 1.14: This reflects the terms of ss 24 to 26.

Note 1.15: This reflects the common law position. Each of the tenants is separately liable for all of the obligations of the tenancy including payment of rent ( Brown v. Paterson (1704) Mor. 14629). Non-occupation by one does not exempt him/her from liability for non-observance of conditions by the other ( Dickson v. Dickson (1821) 1 S. 113; (1823) 2 S. 462). See further Paton and Cameron, Landlord and Tenant, p60.

Note 2.2: The reference to furniture here is optional and may be removed if no furniture is supplied with the tenancy. The tenant has a common law obligation "to use a reasonable degree of diligence in preserving the house from injury" (Ersk II, 6, 43). The tenant must act in a "tenant like" fashion. See Warren v. Keen [1954] 1 QB 15 for illustration of the meaning of "tenant like". The tenant is liable thus for damage caused by his/her wilful or negligent behaviour ( Hardie v. Black (1768) Mor. 10133), that of his sub-tenants and servants ( Sutherland v. Robertson (1736) Mor. 13979; McLellan v. Ker (1797) Mor. 10134) and family and guests ( Warren v. Keen). It follows that the tenant is not liable to the landlord for damage caused other than wilfully or negligently by him/her self, family, co-residents and visitors. Neither will the tenant be liable for damage caused wilfully by third parties. (See notes to 5.10.) Correspondingly, where the tenant suffers loss as a result of 3rd party actings (for example flooding) the landlord is not liable (e.g. Mechan v. Watson 1907 SC 25; Allan v. Robertson's Trs (1891) 18 R 932; NB Storage Co. v. Steele's Trs 1920 SC 194). The reference to neighbours is to tie in with para 5.13 (landlord duty where adjoining property). The 4-week clause ties in with para 6.5 (abandonment of house). The specific reference to freezing pipes derives from Mickel v. McCoard 1913 SC 896: the tenant's duty of care extends, in freezing weather, to either draining down the water system or informing the landlord of his/her absence. Where the tenant, those residing in the house (including family) or visitors have failed to act with reasonable care, the tenant is liable for any damage ( Sutherland v. Robertson) even if s/he was not personally negligent.

Note 2.3: At common law, a tenant must not invert possession, that is, use the subjects for a purpose other than that for which they were let; here, as a dwelling house. (See generally for example Paton & Cameron, Landlord and Tenant, (2nd ed. 1967, p137). See also paragraph 2.6.

Note 2.4: Overcrowding is defined at 1.11. referring to section 135 of the 1987 Act. There is no definition in the 2001 Act of overcrowding and the provisions in the 1987 Act are unaffected by the passage of the 2001 Act.

The remaining sentences merely reflect good practice in allocations and do not place a contractual obligation to re-house immediately.

Note also that there are certain other provisions in the 1987 Act relating to overcrowding. Section 142 permits an occupier of a house to apply to the local authority for a licence permitting overcrowding which may be granted in exceptional circumstances and where it is expedient to do so. The following sections have been brought into force only in the Dysart Ward of the Burgh of Kirkcaldy and the Burgh of Queensferry. Section 144 provides that a landlord of a house is guilty of a criminal offence, if he lets it without giving that person a written statement of the permitted number of people in the house. Sections 139 and 140 provide that it is a criminal offence for an occupier to permit overcrowding.

Note 2.5: Given the very wide variation of practices as regards pets among different landlords and as regards different housing types, it has not been possible to provide a single model paragraph which would be of general applicability. Instead, a number of pointers are given as to the types of issues that landlords may wish to consider in drafting this paragraph.

A brief reference is made to the Dangerous Dogs Act 1991 as this is thought to be an important issue in some parts of the country. A number of other statutes govern animals such as the Civic Government (Scotland) Act 1982, Animal Health Act 1981, Dogs Act 1871, Breeding of Dogs Act 1973, Animal Health Act 1981. Reference to such provisions could be made in the Tenant's Handbook.

Note 2.6: At common law, the tenant has a duty not to invert possession, i.e. not to use the house for purposes other than those for which it was let: viz., a dwelling house. This paragraph also has a contractual effect in that the relevant statutory ground for eviction (Schedule 2, Part I, para 2) requires a criminal conviction. This paragraph provides, in effect, that eviction can be founded on proof, to the civil standard, of use of a house for illegal or immoral purposes. The prohibition does not, as such, extend to actions such as dealing in drugs or soliciting in the vicinity of the house. This is dealt with in Part 3 and is a breach of the Agreement (where it results in anti-social effects on neighbours).

Note 2.7: This paragraph ties in with the Council's duties in respect of repair and dampness narrated in Part 5 of this Agreement to which reference should also be made.

Heating. At common law the tenant has a duty to remain in possession of the house so it does not suffer from being unoccupied (Rankine: The Law of Leases in Scotland (3rd ed., 1916 p233-236). See also Smith v. Henderson (1847) 24 R 1102). It follows from this that the house must be kept aired and fired so as to prevent damp. ( Mickel v. McCoard 1913 SC 896). However, a tenant is not obliged to spend an excessive amount on heating, even if that is the only way of preventing, say, condensation dampness ( McCarthy v. Glasgow District Council (1988) SCOLAG 21; Fyfe v. Scottish Homes 1995 SCLR 209; Guy v. Strathkelvin District Council 1997 HousLR 14). The condition of the house and therefore what the tenant can be expected to spend must be related to the realities of life (McCarthy, supra) and the spectrum of lifestyles of the type of tenant that the landlord can reasonably expect to live in its properties ( Quick v. Taff Ely Borough Council [1986] QB 809; Gunn v. Glasgow District Council 1992 SCLR 1018 (Notes); 1997 HousLR 3 and Guy v. Strathkelvin District Council 1997 HousLR 14). Thus, the tenant's duty at common law to "air and fire" the house is subject to the landlord providing a tenantable house, which is capable of being heated to a reasonable temperature at a reasonable cost ( Gunn; Fyfe). Where that is not possible, due perhaps to defective or insufficient insulation ( Gunn), the landlord is liable to repair and for damages unless it can show that the tenant was at fault, that is, it is able to prove that the tenant acted in an untenant like manner and as a result the damage occurred (see examples in Gunn). There is no general duty to air and fire the house when not in occupation, merely to take reasonable care ( Mickel, supra).

Ventilation. Similarly, while a tenant has a duty to ventilate the house ( Mickel; Smith, supra) this is subject to the duty of the landlord to provide a house capable of ventilation ( Summers v. Salford Corporation [1943] AC 283 (HL)). Windows alone may not be proper ventilation ( Edinburgh District Council v. Davis 1984 SCOLAG 86). Thus, again, the tenant's common law duty to air or ventilate the house is subject to the landlord's duty (deriving from the over-riding common law duty of providing and maintaining a habitable house) to provide adequate means for ventilation. Furthermore, in determining whether the house is reasonably fit for human habitation, in terms of Schedule 10 to the 1987 Act and Schedule 4(5) to the 2001 Act, regard must be paid to the current building regulations relating to sanitation (which includes ventilation) where lack of ventilation is an issue. (See also Guy and Fyfe). The Building Regulations specify, among other things, minimum standards for the provision of ventilation and insulation.