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

Model Short Scottish Secure Tenancy Agreement

1. HOW TO USE THE MODEL

1.1 The form of the Model Short Scottish Secure Tenancy Agreement (MoshSsta) is as follows. There are three categories of clause. The first category is the Core clause. This represents a summary of the landlord and tenant's Core rights and obligations which are expressed in the Housing (Scotland) Act 2001 and other relevant housing legislation. These Core rights include compensation for improvements and right to repair. The expression of these Core rights in the Agreement can only be a gloss on the statute which takes precedence in the event of any dispute as to interpretation. Such clauses are mandatory. They are indicated in bold. The second category is those clauses which replicate, in a contractual fashion, the common law rights and obligations in respect of repairs, maintenance and use and care of the house. Such clauses are also mandatory. They are indicated in italics. (Where clauses are bold and in italics, the source is both the common law and statute.) The third category of Clause is optional. It deals with a variety of peripheral matters that landlords may or may not wish to include. It also covers optional augmentation to the statutory and common law position that some landlords may wish to include. Such clauses are indicated in ordinary typeface. Clauses in square brackets [ ], indicate clauses with options depending on local arrangements (such as frequency of rent payments). Detailed references are given in the notes to each paragraph. A number of clauses derive from other statutory sources not specific to housing law but are not part of the Core rights. These are not highlighted in the text. Reference is made to them in the Notes. It is recommended that such clauses be maintained in any short Scottish secure tenancy agreement. Landlords are free to add other clauses to their own tenancy agreement or vary them so long as the requirements of the 2001 Act are met.

1.2 It is recognised that the full text of MoshSsta would probably not be read by the majority of tenants. It is also recognised that it would be impractical to expect housing officers to take tenants through the full text of MoshSsta in the signing-up process. However, MoshSsta is not designed to be read at a single sitting or to be used for the signing-up process. It is there to encapsulate the rights and obligations of both landlord and tenant. In effect, it provides a useful reference tool for landlord and tenant where more detailed information is required on the legal responsibilities of landlord and tenant. A summary form of the Agreement (see next paragraph) would be used at the signing-up process. It is intended that a tenant or housing officer wishing more detail about any aspect of the tenancy will be able to make reference to MoshSsta for clarification. In addition, there are also detailed notes referring to each paragraph of MoshSsta. These notes will not appear in the version signed by the landlord and tenant but are intended as an aid to understanding of the Agreement.

1.3 MoshSsta is intended to be used with the Summary MoshSsta (SuMoshSsta). It follows the same structure as the principal Agreement but is considerably shorter. SuMoshSsta is no longer than the majority of social sector tenancy agreements and shorter than many. The purpose of SuMoshSsta is to provide a document which encapsulates the principal elements of MoshSsta. It will help housing officers when signing-up tenants. It also provides a handy summary for tenants and housing officers of the main terms of the tenancy. However, it does not and cannot act as a substitute for MoshSsta; neither does it in any way change the meaning of any term or condition contained within MoshSsta. It is insufficiently precise and comprehensive to be anything other than a broad summary of the position. Nevertheless, it is intended to have a practical everyday utility.

1.4 Thus, at signing-up, the short Scottish secure tenant will receive the following documents:

• SuMoshSsta (which the housing officer uses in the signing-up process to explain the principal terms).
• MoshSsta which is signed by landlord and tenant after the tenant has been given the opportunity of reading the text, (but if the tenant does not wish to do so, its legal validity is not affected).
• Tenant's Handbook, or equivalent (which will provide extra detail particularly in relation to local matters). Neither the Tenant's Handbook nor the SuMoshSsta will have direct contractual effect.

Landlords will be aware that in terms of section 34 of the Act, an essential prerequisite for the formation of a short Scottish secure tenancy is that before the creation of the tenancy, the prospective landlord must serve on the tenant a statutory notice complying with section 34(4) and The Short Scottish Secure Tenancies (Notices) Regulations 2002. If that is not done, no short Scottish secure tenancy is created. The tenancy will be a Scottish secure tenancy. Service of the notice can be done in the ways specified in section 40 of the Act. It may be served on the tenant(s) during the signing-up process as long as the service is done before the parties sign the Agreement. However, as a matter of good practice, landlords should serve the notice a day or more before the creation of the Agreement wherever feasible.