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

Note 2.9: This contractual paragraph is intended to give a clear right to the landlord to intervene in disputes of this type. Where resolution of a dispute of this kind cannot be achieved through consensus, a mechanism is provided for the imposition of a solution, enforceable by legal action if necessary. See Note 2.8 above for more detail on the need for such a provision.

Note 2.10: This paragraph, which is contractual, applies only to those with exclusive use of a garden. Those who share a garden are dealt with in the following paragraph. The general duty is contained in the first sentence. At common law, the landlord is the owner of plants and trees growing on the landlord's land and gardens even if the tenant planted them. However, some landlords may consider it harsh to forbid a tenant the right to remove or cut down a plant or tree which s/he planted hence the final optional clause in this and the next paragraph.

See also notes to paragraphs 2.8 and 2.9.

Note 2.11: This paragraph deals only with those who share a garden. See also paragraphs 2.9 and 2.10 and notes thereto.

Note 2.12: This paragraph is contractual. It can be adapted to deal with local conditions.

Note 2.13: This paragraph is contractual. It can be adapted to deal with local conditions.

Note 2.14: Depending on local practices and the type of house, it may be desirable to restrict the use of certain types of heaters. This optional paragraph provides suggestions as to the content of any such provision.

Note 2.15: Depending on local practices and the type of house, it may be desirable to restrict the storage of inflammable or explosive substances. This optional paragraph provides suggestions as to the content of any such provision.

Note 2.16 and 2.17:Both are contractual and are designed to tie in with Part 3 of this Agreement.

Note 2.18: This reflects the right of the tenant to seek to change any term of the Agreement which restricts his use of the house: see s26.

General Note to Part 3

The purpose of this part is to provide in effect a binding code of good behaviour. It incorporates elements both of the law and recommended good practice. For example, there is no specific statutory or common law obligation for a landlord to deal with complaints about anti-social behaviour. That aspect is dealt with here. The Scots law position is more fully narrated in Collins and O'Carroll (1997), "Anti-social Behaviour and Housing: The Law", published by Legal Services Agency, Chartered Institute of Housing in Scotland and others. See also the Scottish Office Development Department circular 16/1998 for a very good summary of the law and good practice. Both are now a little out of date. See also Atkinson, Mullen and Scott, The Use of Civil Legal Remedies for Neighbour Nuisance in Scotland, Scottish Office Central Research Unit, (2000), especially chapters 2, 10 and 11. The object of this Part is two-fold. First, to make clear to the tenant what behaviour is prohibited in an unambiguous way. Secondly, to provide the legal platform should the landlord decide that it wishes to take legal action including interdict.

Note 3.1: This paragraph and the following have been written to dovetail with the amended grounds for eviction introduced by section 23 of the Crime and Disorder Act 1998 and now contained in grounds 7 and 8 of schedule 2 to the 2001 Act. See further paragraph 6.4. This paragraph is intended to make the tenant responsible not only for his/her conduct, but that also of the tenant's visitors and those living with the tenant.

Note 3.2: This definition is intended to reflect the definition contained within grounds 7 and 8 of Schedule 2 to the 2001 Act. The definition also includes damage to property, which might not otherwise be caught by those grounds.

Note 3.3: This contractual paragraph provides amplification of the general obligation in paragraph 3.1 to provide a non-exhaustive list of prohibited behaviour. All the examples given are of behaviour which is prohibited per se. The examples are thought to be those which are the commonest of this type.

Note 3.4: This contractual paragraph provides amplification of the general obligation in paragraph 3.1 to provide a non-exhaustive list of prohibited behaviour. All the examples given are of behaviour which is prohibited only if the carrying out of that behaviour has an anti-social result. The examples are thought to be those which are the commonest of this type. The final sentence makes clear that the examples in this and the preceding paragraph do not affect the generality of the prohibition in paragraph 3.1.

Note 3.5: Contractual. Firearms offences are increasing in Scotland. Some landlords and tenants are concerned about their use. This optional paragraph prohibits unlawful storage of firearms and ammunition.

Note 3.6: This paragraph is included for the avoidance of doubt to preclude any legalistic arguments that a tenant may not be liable for the actions of visitors since the visitor is not a party to the lease.

Note 3.7: Contractual. Good practice means that landlords take effective action to deal with complaints of anti-social behaviour in terms of a well considered policy and strategy: see SODD Circular 16/1998; Collins and O'Carroll Chap 2, and Atkinson, Mullen and Scott (2000). The range of possible responses is broad. Although the case of Dundee District Council v. Cook 1995 SCLR 559 suggests that a Council does not have title and interest to seek interdict against those who are not its tenants, it is thought that that case may have been wrongly pleaded or decided and that that case is not authority for the proposition that a Council can never seek interdict for such behaviour against a non-tenant (See Collins and O'Carroll, Chap 4). In any event, there would be nothing to prevent a Council pursuing action in the name of the aggrieved tenant, with his/her permission and suitable undertakings as to expenses. In addition, good practice requires social landlords to have a published anti-social behaviour policy.

Note 4.1: This reflects the statutory code contained in s32 (assignation, sub-letting, etc.), s33 (exchange of houses) and s11(5) (assumption of joint tenant). These provisions apply equally to short Scottish secure tenants as they do to Scottish secure tenants: see s34(6). In all cases, the consent of the landlord is to be obtained. Note that the procedure for assumption of joint tenants appears to be quite different from that applicable to other forms of variation of the tenancy (unless a court were to take the view that the assumption of a joint tenant amounts to giving up of possession of the house, within the meaning of section 32(1), in which case, the same procedures and appeal routes would apply).

Note 4.2: This reflects the statutory code contained in s32 (assignation, sub-letting, etc.), s33 (exchange of houses) and s11 (5) (assumption of joint tenant). The examples of grounds for refusal are taken from the legislation and are not exhaustive. Note that s32(4) makes special provision for housing co-ops in that the assignee, etc. must be a member of the co-op when the assignation, etc. takes effect. Paragraph 9.3 provides more on the procedure, deemed grant of consent and the rights of appeal to the sheriff.

Note 4.3: This reflects the new statutory provisions introduced by section 33. The examples of grounds for refusal are taken from the legislation and are not exhaustive. If the short Scottish secure tenant proposes to exchange with a ( full) Scottish secure tenant, it is thought that the landlord has three choices. First, it may decide that in the circumstances it is reasonable to refuse permission. Secondly, it may decide to grant permission but to serve a notice under s34(4) (assuming that a Schedule 6 ground exists), creating for the incoming tenant a short Scottish secure tenancy as of the date of exchange, so that the incoming tenant does not thereby acquire a Scottish secure tenancy (which would normally be the effect of s33(6)) when the house was previously held on a short Scottish secure tenancy. (This might be necessary where the house is itself leased and the terms of the lease forbid letting on a (full) Scottish secure tenancy or where the incoming tenant falls within Schedule 6). Thirdly, it may decide to grant permission and to grant the incoming tenant a Scottish secure tenancy despite the fact that that the house was previously held under a short Scottish secure tenancy or that the incoming tenant held a short Scottish secure tenancy in the other house. Of course, the other landlord may have reasons for refusing the exchange in which case, the exchange would not take place in any event (subject to appeal). Note that s33(4) makes special provision for housing co-ops in that the exchanger must be a member of the co-op when the exchange takes effect. Paragraph 9.3 provides more on the procedure, deemed grant of consent and the rights of appeal to the sheriff.

Note 4.4: The Matrimonial Homes (Family Protection) (Scotland) Act 1981 in effect prohibits "dealings" with the matrimonial home which affect the rights of occupation of the "non-entitled spouse" without the consent of that non-entitled spouse. A "dealing" includes the assignation, exchange, etc. of the matrimonial home. Opposite sex co-habitees do not have the same automatic occupancy rights in relation to the matrimonial home. However, such a co-habitee can seek a declaration from the sheriff court of occupancy rights and while such a declaration is in force, dealings will require the consent of the co-habitee. The 1981 Act gives no rights at all to same sex co-habitees or others residing with the tenant. Their consent is not required. Hence, the term "co-habitee" is not used in this paragraph. See section 20 for the procedure for dealing with abandonment of the tenancy by a joint tenant.

General Note to Part 5

This Part reflects the current common law and statutory position in relation to the crucial area of repairs and related matters. The 2001 Act deals with repairs, improvements and compensation at sections 27 to 31 and Schedule 4. However, the majority of the law dealing with repairs is found elsewhere. The following are some of the principal sources of the law, and commentaries on the law, in relation to repairs:

Housing (Scotland) Act 1987 (especially Schedule 10 (which applies to the vast majority of rented houses); Rankine (1916), Law of Leases in Scotland; Stair Memorial Encyclopaedia, Vol. 13; Paton and Cameron (1967), Landlord and Tenant; Robson (1993) Residential Tenancies; Brown and McIntosh (1987) Dampness and The Law Shelter; Knafler (1997), Remedies for Disrepair, Sweet and Maxwell. O'Carroll and McIntosh (1993), Solicitors Dampness Action Pack, Legal Services Agency, contains a useful summary of the law and relevant cases. It is important to note that the statutory code relating to repairs contained in Schedule 10 to the 1987 Act cannot be contracted out of except by application to the sheriff. Any clause of a tenancy agreement which purports to exclude or restrict the implied repairs obligations is void (Schedule 10(5)).

Note 5.1: The common law duty of repair (see paragraphs 5.2 and 5.3 and Notes thereto) is to provide and maintain the house in habitable (or tenantable) condition rather than to "repair" as such. Thus, works may be required to the house which may not ordinarily (or as a matter of law) be properly termed "repair" (e.g. - addition of insulation: Gunn v. Glasgow District Council 1992 SCLR 1018 and see Neilson v. Scottish Homes 1998 HousLR 56). In this, Scots law is quite different from English law where there is no equivalent common law obligation (see e.g. Quick v. Taff Ely Borough Council [1985] 3 All ER 321). It has been suggested that the statutory formulation ("in all respects reasonably fit for human habitation") does no more than reflect the common law obligation ( Murray v. Edinburgh District Council 1981 SLT 253 and c.f. Summers v. Salford Corporation 1943 AC 243 (HL)). Both formulations are included here in case there is a difference. It should be noted that much, if not most, of the caselaw on repairs was decided on the common law duties.

Note 5.2: The duty of the landlord at common law is to provide the house at the beginning of the tenancy, in a habitable condition (Rankine, p240; Lamb v. Glasgow District Council 1978 SLT (Notes) 64; Docherty v. Inverclyde District Council 1995 SCLR (Notes) 965; Neilson v. Scottish Homes 1998 HousLR 56), wind and watertight against ordinary encroachment of the elements ( Wolfson v. Forrester 1910 SC 675; Rankine p242), reasonably fit for the purposes for which it was let (Rankine p240), and in all respects reasonably fit for human habitation (1987 Act, Schedule 10(1)). The new expression of statutory duties contained in Schedule 4(1) of the 2001 Act effectively encapsulates these duties. The 1987 Act and 2001 Act duties are co-terminal. These duties entail an inspection at or immediately prior to the commencement of the tenancy (e.g. Lamb; Bell v. SSHA 1987 SLT 320). That duty is now effectively expressed in Schedule 4(2)(a) of the 2001 Act. The duty is one of warrandice, that is, a guarantee that the subjects are in such repair at the commencement (see Erskine, Institutes, II, 6, 39 and 43 and Rankine p241-2). The 2001 Act expresses this duty by the use of the word "must" rather than by reference to the term warrandice. Thus any necessary repairs in order to ensure that the house let at the commencement of the tenancy conforms to statute and common law (i.e. not only the wind and watertight condition) must be carried out at or prior to the commencement of the lease. The 2001 Act expresses this effectively in Schedule 4(1) and (2). If the repairs are not done, then the landlord is in breach of its common law obligations (e.g. Brodie v. McLachlan 1900 SLT 145) and now in breach of its statutory duties. Repairs which are not required to bring the subjects to a habitable, etc. condition (for example, minor repairs to internal doors where there are no health and safety implications) need not, at common law or in statute, be done at that time. Thus, the clear intention of the Act is that during the inspection prior to the commencement of the tenancy, the landlord draws up a list of repairs that need to be done. That list is divided into two: those which have to be done before the commencement of the tenancy (to ensure that the house is wind and watertight, habitable and in all respects reasonably fit for human habitation) and those which are not necessary to meet that condition. Those other repairs, if they are to be done at all, may be done during the term of the tenancy.

Note 5.3: General. Once the tenancy has begun, the landlord's duty is to undertake to keep the house in all respects reasonably fit for human habitation (Schedule 10 (1)(2), 1987 Act, Summers v. Salford Corporation [1943] AC 283 HL), wind and watertight ( Wolfson v. Forrester 1910 SC 675) and in tenantable condition (Rankine, p240-2). This duty is recognised in the 2001 Act in Schedule 4(1)(b). The use of the word "keep" does not imply an absolute obligation. The duty is fulfilled by carrying out repair, or other work, within a reasonable time of becoming aware of the need for repair. (Rankine, p240, Paton and Cameron, p132, Shields v. Dalziel (1887) 24 R 849, Gunn v. NCB 1982 SLT 526, McGreal v. Wake (1984) 128 SJ 116, Golden Casket (Greenock) v. BRS (Pickfords) 1972 SLT 146; O'Brien v. Robinson [1973] AC 912; [1973] 2 WLR 393; (HL)). See now Schedule 4(3)(a) of the 2001 Act. The reasonableness of that time will depend on all the circumstances including the seriousness of the disrepair (e.g. Scottish Heritable Security v. Granger (1881) 8 R 459, Gunn v. NCB supra, Bolan v. Glasgow District Council (1984) SHLR 40 McGreal v. Wake (1984) 128 SJ 116; Shields v. Dalziel (1987) 24 R 849), the effect on the tenant, the effect on the building, the complexity of the works, the ease with which it is possible to specify what needs to be done, the landlord's own internal or published policy, policies of other, similar landlords, expert evidence (from, say, plumbers, architects, housing professionals) including possibly the existence of a planned modernisation programme. However, where the disrepair was present at the commencement of the tenancy, there is no such reasonable period of time since the landlord guarantees that the house is tenantable at the start of the tenancy: see Note 5.2. The final sentence is contractual and good practice. It is thought that the doctrine volenti non fit injuria (no liability to a person who has voluntarily accepted a risk) does not apply to housing disrepair cases, at least those based on contract ( Neilson v. Scottish Homes 1998 HousLR 56) although continued residence may be relevant to the assessment of damages ( Neilson, supra).

Note 5.4: The landlord is also under a duty at common law to inspect the common parts at the commencement of the tenancy to see that, at the very least, no foreseeable danger to the tenant or user of the common parts exists (which is not obvious) as the subjects must be reasonably fit for the purposes for which they were let and in this Agreement, the subjects include the common parts: Erskine II, 6, 43 ( e.g. Mellon v. Henderson 1913 SC 1207, Johnstone v. Glasgow District Council 1980 SLT 50, Hughes Tutrix v. Glasgow District Council 1982 SLT (Sh Ct) 70)). This is now expressed in Schedule 4(2)(a) of the 2001 Act.

The third sentence reflects the provisions of Schedule 10(3)(1B) to the 1987 Act.

The fourth sentence is optional. In lets of urban houses, the legal position regarding repair of fences, etc., is not entirely clear. The Local Government Ombudsman receives many complaints about such matters. Fences, etc., are not included in the definition of common parts in clause 1.11. It is recommended that the optional clause is used or some other formulation which makes the position clear.

The fifth sentence is contractual. There is no common law duty implied into a tenancy agreement on a landlord to inspect the house during the course of the tenancy ( Hampton v. Galloway and Sykes (1899) I F 501; Murray v. Edinburgh District Council 1981 SLT 253) unless it has reason to suspect disrepair. But the position may be different in respect of those parts of the common parts which are solely under the control of the landlord (for example, a locked attic space to which only the landlord has the key) or to which the tenant can not reasonably obtain access (for example the roof). For cases on this point see Murphy v. Hurley [1922] 1 AC 369 (repair of sea wall) cited in O'Brien v. Robinson [1973] AC 912. Furthermore, it can be said with some force that where the landlord has built the entire building (as will often be the case with social landlords) and/or has provided installations therein (e.g. plumbing), it is thereby fixed with the knowledge of the probable life expectancy of such installations and the manufacturer's recommendations for maintenance and inspection. If inspection and maintenance is not carried out and damage occurs thereby, the landlord may be liable, in delict and under the Occupiers Liability Act 1960, for such losses. A related argument might be made out in respect of latent defects in construction (see Reid v. Baird 1876 4 R 234 and Golden Casket (Greenock) Limited, supra). For these reasons, a duty to inspect at intervals is included. The length of the intervals will vary with the part to be inspected.

Note 5.5: This reflects Schedule 10(3)(3A) to the 1987 Act.