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

Note 5.7: This paragraph reflects the terms of Schedule 4(5) and (6) of the 2001 Act. Sch 10(1)(4) to the 1987 Act, which is in similar terms, was considered in Fyfe v. Scottish Homes 1995 SCLR 209 (a condensation dampness case). It was held that a court, when assessing whether a house is habitable, may have regard to the regulations which were in force for the construction of new buildings at the commencement of the tenancy, even though the house may have been built before the regulations came into force. The court, of course, would be entitled to have regard to other matters, including the age of the building. Although the Fyfe case focused on those regulations which were in force at the commencement of the tenancy, it may be that, in relation to disrepair occurring during the tenancy, the relevant regulations would be those in force at the date of the disrepair. The effect of the section is not to impose a requirement on landlords to upgrade the house each time the regulations change: rather, the duty is to "have regard" to them in assessing their repair responsibilities. See also Guy v. Strathkelvin Council 1997 HousLR 14 in which a similar argument was upheld.

Note 5.8: The first three bullet points reflect Schedule 10(3) to the 1987 Act. The reference to the chimneys is not specified in the Act. Neither is there any Scottish or English caselaw on this point. However, they are installations for space heating. Accordingly responsibility for the cleaning of the chimneys is, subject to the tenant's general duty to act in a tenant like fashion, that of the landlord.

The third bullet point reflects Schedule 10(3)(2)(c) to the 1987 Act. The second sentence, which is derived from that part, itself refers to the common law position regarding fixtures attached to the house by the tenant. The basic common law position is that a tenant may remove fixtures attached by him/her for the purposes of his trade ( Syme v. Harvey (1861) 24 D 20; Marshall v. Tannoch Chemical Company (1886) 13 R 1042) and articles annexed for ornamentation or for the better enjoyment of the article itself ( Spyer v. Phillipson [1931] 2 Ch 183). This is subject to the limitation that the articles must be capable of removal without material injury to the house and without being destroyed or losing their essential character or value (Amos and Ferrard: Fixtures (3rd ed. 1883) pp71,72). Plant and machinery are not prevented from being removable merely because they require to be dismantled providing they can be fitted together in the same form in another place ( Whitehead v. Bennett (1852) 27 L.CH.474).

The fourth bullet point reflects the requirements of the Gas Safety (Installation and Use) Regulations 1999. Access for inspection is dealt with in paragraph 5.12.

The final bullet point is optional. It may be included where the definition of the common parts at paragraph 1.11 includes such equipment. The obligation does not derive from any statutory or common law source. However, it seems sensible and good practice to include such an obligation where tenants are dependent on communal facilities for such entertainment. It should be noted that the definition of repair can include the replacement of an obsolete thing by its modern equivalent: Morcom v. Campbell-Johnston [1956] 1 QB 106. It may be that the advent of digital television services and the abolition of analogue services may raise important issues regarding repair and replacement. It may be that the definition of the common parts chosen in this Agreement does not include such equipment and that the provision of television signals is defined as a service. In that case, it is the agreement on services (see paragraph 1.6) that determines the landlord's responsibilities for fixing defective equipment and replacement of obsolete equipment. Finally, the complex provisions of Reg 10 and Schedule 1 of the Housing Benefit (General) Regulations 1987 in relation to communal telecommunications facilities should be noted.

Note 5.9: Generally, landlords have responsibility for installations for the supply of water (Schedule 10(3)(1)(b)(i) to the 1987 Act). Detailed Water Supply Bye-Laws exist in most parts of the UK regulating all aspects of the supply of water. The Bye-Laws in each area are based on the Model Water Bye-Laws 1986. A full account of them together with Guidance is to found in the White and Mays (1989): Water Supply Bye-Laws Guide (2nd ed.), Ellis Horwood Limited. Landlords thus are responsible for complying with the Bye-Laws, together with any other joint owners. Contravention of the Bye-Laws is a criminal offence (Bye-Law 99). Even if the Bye-Laws do not operate in a particular area, it is thought desirable that those provisions contained here ought to form part of the Agreement.

The Bye-Laws are lengthy (101 in total). It is impracticable (and unnecessary) to refer to them all. However, it is thought desirable that the essence of some of them is specifically brought to the attention of the landlord and tenant. This is particularly so, given the experience of widespread financial loss (to both landlord and tenant) that occurred during freezing conditions in December 1995 and on other occasions.

The first bullet point reflects Bye-Law 30, the second 61 to 63, and the third 49. Bye-Law 100 provides that "it shall be a defence for a person charged with an offence under the Bye-Laws to show that he took all reasonable steps and exercised due diligence to avoid commission of that offence, or he had a reasonable excuse for his act or failure to act". This is reflected in the opening words to the paragraph and explains the final sentence. The Bye-Laws do not expressly impose an obligation to inspect the water supply intervals. However, it is suggested that unless the landlords had some system of inspection, it would be difficult to argue that it had taken "all reasonable steps" to avoid contravention of the Bye-Laws. Furthermore, the landlord guarantees, as a matter of law, that the house is let at the beginning of the tenancy in a habitable condition - this necessarily entails an inspection at the beginning including of the common parts (see Note 5.2).

Note 5.11: This paragraph is optional. At common law, destruction by Act of God terminates the lease. However, a short Scottish secure tenancy may only be brought to an end in one of the six ways provided for in s12(1) (see part 6 below); and none of the six includes an Act of God. However, a landlord is under no duty to repair such damage in terms of statute (Schedule 10 (3)(2), 1987 Act) or to provide temporary accommodation. This paragraph gives the landlord discretion as to what to do after such damage. It is thought that social landlords would nevertheless accept responsibility in such circumstances voluntarily.

Note 5.12: The first two sentences broadly reflect Schedule 4(4).

The third sentence is contractual: repair and inspection of wires, cables and pipes is covered by the first sentence. Laying of new wires, etc. is likely not to be repairs; contractual authority is necessary.

The fourth sentence simply reflects the common law right of the landlord as owner of the subjects since the tenant has no exclusive possession of the common parts.

The fifth sentence is contractual. It is intended to deal with the situation, often encountered, where a tenant refuses, or otherwise fails, to give the landlord access for inspection, for example in connection with the landlords obligations under the Gas Safety (Installation and Use) Regulations 1998. At present, the law is unclear as to what remedies the landlord has in such a situation. This paragraph clarifies the position contractually.

The sixth sentence is contractual and deals with the consequences of the landlord exercising its right to make forcible entry.

The seventh sentence reflects the common law concept of negotorium gestio (agency by necessity) as well as the right of any owner of property to take reasonable steps to safeguard his/her own property. Reinstatement of damage caused through forced entry and inspection and repair, where the tenant is not at fault, is dealt with in paragraph 5.14.

Note 5.13: This is an expression of the common law duty (in delict, sometimes loosely referred to as the law of negligence) of reasonable care by the landlord to the tenant. The short Scottish secure tenant has a duty (paragraph 2.2) to inform the landlord if s/he will be away for 4 weeks or more. If s/he does so, the landlord is arguably under a duty of care to that tenant's neighbours to consider the possible consequences arising from the weather or 3rd party actings - (c.f. Maloco v. Littlewoods Organisation 1986 SLT 272). Where the landlord does not know that the adjoining house is empty and could not otherwise reasonably have known that, no duty arises in this regard. This paragraph should not prevent usual delictual principles from applying in cases arising from, say, 2 weeks' non-occupation where a party has suffered loss as a result of breach of duty of care by some other party. The bullet points are illustrations only of the typical sorts of work that may be required.

Note 5.14: The first sentence reflects the common law (see Little v. Glasgow District Council 1988 SCLR 482; McGreal v. Wake (1984) 128 SJ 11; 13 HLR 109; Bradley v. Chorley Borough Council (1985) 17 HLR 305). This duty is now found in Schedule 4(3)(b).

The second sentence reflects the common law: the landlord is entitled to have repairs carried out to its house and if that requires the temporary decanting of the tenant: that right is implied (c.f McGreal above). Normally, the landlord would offer suitable decanting facilities which are not to be a short Scottish secure tenancy: see s11(9) and Schedule 1(4). Note also that Schedule 2(10) allows for eviction where repairs or other work requires to be done on the house in the absence of the tenant.

The law relating to the third sentence (expenses on decanting), which is optional, is not entirely clear in Scotland. In McGreal v. Wake, it was held that such expenses are payable if the repairs were not done in a reasonable period of time (thus triggering a breach of contract) and it was not essential for the tenant to decant in order to allow the repairs to be done. Both criteria will be problematic, to say the least, to assess in any given situation. For reasons of pragmatics and good practice, the position is contractually clarified. See also Calabar Properties Limited v. Stitcher [1984] 1 WLR 289 and Knaffler (1997), p214.

The reason for the fourth sentence, which is optional, is as follows. At common law, where the subjects are unusable, wholly or partly, whether due to the landlord's actions or any other cause apart from the tenant him/herself, ( Muir v. McIntyres (1887) 14 R 470) the tenant is entitled to a fair abatement (i.e. reduction) in rent: Renfrew District Council v. Gray 1987 SLT (Sh Ct) 70. In the case of decanting, the abatement will be 100%. This sentence is inserted to contractually clarify the common law position. Without this provision, the tenant might be put in the invidious position of suffering not only the inconvenience of decanting but also the imposition of a higher rent, perhaps more than s/he could afford.

Note 5.15: The duties of repair contained in this part continue until the Agreement is terminated in one of the ways set out in Part 6. Thus, even where the landlord is pursuing recovery of possession, the duties of repair still stand. The position is, of course, the same where a tenant has served notice that s/he wishes to exercise the right to buy. Until ownership passes to the tenant, the landlord has the duties of repair contained in this Part - not just to keep the house wind- and water-tight.

Note 5.16: It is normal for the tenant to be placed under an obligation to report the need for repairs. In addition, the landlord's obligation to repair after the commencement of the tenancy is not triggered until it becomes aware of the need for a repair - see Note 5.3.

Note 5.18: The first two sentences are simply a brief reference to Regulations made in terms of s27(2): The Scottish Secure Tenants (Right to Repair) Regulations 2002. The Regulations apply to Scottish (and short Scottish) secure tenants of local authorities, RSLs and water and sewerage authorities. Tenants covered by the Regulations have the right to have certain repairs carried out within a particular timescale. If the repairs are not done within that timescale, the tenant may instruct a contractor from a list held by the local authority. Compensation may be payable if the repair is still not done within specified timescales.

Note 5.19: This reflects the common law position (Rankine on Leases, p242; Gloag on Contract (2nd ed. 1929), p629; Baird v. Inglis (1671) 2 BS 562). However, the common law position has been modernised and modified by tying it in to the landlord's complaints procedure. All social landlords have one and are expected to have one by the regulatory authority that was Scottish Homes. See Part 9 of the Agreement. The modification to the common law right proposed in this paragraph is designed to achieve a reasonable compromise between the need for the tenant to have repairs done within a reasonable time and the need for the landlord to retain some control over how and when repairs are carried out on its properties and which type. The paragraph warns the tenant that legal advice should be taken before exercising this right. This is so that the tenant can check his/her legal position and in particular whether the repairs that the tenant wants to be carried out are repairs that the landlord is obliged to carry out. It is only where the landlord is in breach of its obligations as set out in paragraphs 5.1 to 5.15 that the right of the tenant to carry out the repairs and deduct the cost from the rent arises. If the tenant does so in respect of repairs which are not the obligation of the landlord, or the cost is unreasonable, the landlord may well succeed in an action for eviction based on rent arrears.

Note 5.20: This paragraph does not impose any contractual obligation and may be removed to the Tenant's Handbook. However, it is an important area and some landlords may wish to retain it in the Agreement.

Note 5.21: This paragraph is intended to summarise the statutory position: see s28 and Sch 5, Part 1 as well as paragraph 9.3 of this Agreement. The examples in the second bullet point are added for clarity; they do not appear in the statute. The examples in the third bullet point are taken from the statute. The fourth bullet point is taken, by implication, from s28(1).

Note 5.22: This is a reference to s29 (power but not duty to make compensation) and s30 (duty to pay compensation in certain circumstances). S30 prescribes which tenants are entitled to compensation on termination of the tenancy and in which circumstance. Regulations made under s30 prescribe the precise circumstances and make further provision. These are The Scottish Secure Tenants (Compensation for Improvements) Regulations 2002.

Note 5.23: This provides a contractual remedy for a breach of 5.21.

Note 6.1: Whereas there is specific statutory authority for the termination of a tenancy by the tenant by notice in the case of the Scottish secure tenant, that authority is removed in the case of the short SST tenant: s34(6)). At common law, a lease for less than one year will tacitly relocate for the same period unless either of the parties serve notice on the other than they intend to bring the lease to an end at the ish: Rankine p 602. At common law, the method of so doing by the landlord is a notice to quit (see paragraph 6.2). The method of doing so by the tenant is unequivocal notice in writing (or possibly also verbally: compare Gilchrist v. Western 1890 17R 363 with Morrison's Exrs v. Rendall 1986 SLT 227): Rankine p597. The amount of notice to be given by the tenant at common law is the same as for the landlord, that is 40 clear days in the case of a lease for longer than 4 months (Rankine p597; s38 Sheriff Courts (Scotland) Act 1907). However, it is considered that in the context of a short Scottish secure tenancy, insistence on this rule would be impracticable for many if not most tenants. Hence, contractually, no minimum notice is required although it must be in writing and expire at the ish: that is the termination date: see paragraph 1.4. Landlords may wish to insist on a minimum period and may do so by appropriate amendment of this paragraph. It is thought that if the tenant had a right to terminate earlier than at this time, it might be argued that the tenancy was not one which was for a term "of not less than 6 months" as required by s34(1)(b) and therefore not a short SST. (In England, it does not seem that any criticism has been made of Assured Shorthold tenancies for a fixed period where the landlord is entitled to terminate after 6 months even though the stated term of the tenancy is for a longer period (see e.g. Aylward v. Fawaz (1997) 29 HLR 408 and Singh v. Emmanuel (1997) 74 P&CR D18, both decisions of the Court of Appeal)). This contractual paragraph (although based on the common law) provides flexibility while, it is thought, complying with the statutory definition of the short SST. Where there is a joint tenancy, and one only of the tenants wishes to terminate the tenancy, s13 reverses the common law position (see Smith v. Grayton Estates Ltd 1960 SC 349) and allows the tenancy to continue with the remaining joint tenant. See paragraph 6.8. Therefore, if the tenancy is held by joint tenants, but only one gives notice, the tenancy continues and will tacitly relocate unless the landlord takes steps to terminate the tenancy by means of a notice to quit: see paragraph 6.2. Under the Matrimonial Homes (Family Protection) (Scotland) Act 1981, the consent of the "non-entitled spouse" is required before valid "dealing" in the matrimonial home can take place: see also Note 4.4.

Note 6.2: This provision is necessary in order to allow for the automatic recovery of possession procedure: see paragraph 6.4. To prevent tacit relocation (see Note 6.4 below) and so to conform to s36(5)(b), the landlord must serve a notice to quit (also known as a notice to remove) at common law. The requirements for a valid notice to quit are detailed in Mitchell: Eviction and Rent Arrears (1995) at pages 35 to 37. In brief, the notice to quit must be in writing, unequivocal, describe the parties and the subjects and state the date on which the tenant is called upon to quit. This should be the termination date. The notice must be served at least 40 clear days before the termination date in the case of a lease for 4 months or more (Sheriff Courts (Scotland) Act 1907). It must be served by one of the people and in one of the ways permitted by Ordinary Cause rule 34.8: i.e., authorised officer of the landlord, sheriff officer or solicitor and by registered post or recorded delivery or, in the case of a sheriff officer, in one of the ways permitted by Ordinary Cause Rule 5.4. It is important to note that a notice to quit is not the same as the written notice referred to in paragraph 6.4 (the notice of proceedings: see s36(2)(a)). Although, unlike the position for assured and short assured tenancies, there is no prescribed information that must be included in the notice to quit advising the tenant of their rights (see SI 1988/2067), it would be good practice to provide some similar clarificatory information in such a notice. Further, the tenant is not obliged to quit as of the date of the termination date. He can only be required to move by court order: s36(6)(a) (which reflects the common law requirement of due process in the case of a person formerly occupying under a colourable title). The precise legal status of the tenant between the termination date and the date of any decree for recovery of possession is unclear: compare the concept of "statutory assured tenancy" provided by s16 of the Housing (Scotland) Act 1988 in the case of assured and short assured tenancies.