Scottish secure tenancy model agreement - revised 2002

Note 1.1: 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. 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 6.7 and 6.8). Joint tenancies have certain legal consequences: see paragraphs 1.11, 1.15, 6.1, 6.2, 6.3, 7.2

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 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 10.5. It should be noted that the scheme of the Act provides that with certain exceptions, all secure tenants and assured tenants of RSLs will acquire the new rights and obligations contained in the Act from the date of implementation as a matter of law. It is not necessary to insert a further clause in this paragraph to reflect that as the Agreement is concerned with the future relations between the landlord and tenant from the date of the Agreement. This paragraph also gives the landlord the opportunity, if it wishes, to synchronise the ish (i.e. the last date of the period of the tenancy) for its tenants so that all its tenancy agreements run for the period. For example, a tenant is given a tenancy with an entry date of 14 January. The normal period of the tenancy is calendar monthly. The agreement will run from 14 January until 31 January, and thereafter on a calendar monthly basis by tacit relocation until terminated in terms of Part 6. This would give advantages to the Council, for example in fixing the date which requires to be inserted in a Notice of Proceedings for Recovery of Possession in terms of s14(4) and for the purposes of increasing the rent under s25. Of course, where a landlord does not wish to achieve such a synchronisation, all that is necessary is to insert a date which is one week/fortnight/month, etc., after the entry date. There is nothing to prevent the lease being signed after the date of entry. The date of entry remains as specified here. However, if the tenant takes entry and then fails to sign, although a Scottish secure tenancy will have been created, the tenant will not be bound by the terms of this Agreement except in so far as the Agreement reflects statutory terms

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 10.5). 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 1.8: This paragraph makes clear the landlord's rights on breach of the Agreement. The rights to claim for legal expenses is restricted to judicial expenses: that is, the expenses of court procedure as assessed (or 'taxed') by the 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 Tenants 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 10.5 (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 Sch 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 to "common parts" would be circular. The definition may require to be adapted to suit local conditions. The definition is relevant to the accommodation 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. See further Note 2.1. "Tenant"includes joint tenant: s41

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 2.1: The Tenant's Handbook should inform the tenant regarding housing benefit rules and absences.
The first sentence reflects the terms of s11(1) (definition of Scottish secure tenancy in the 2001 Act). Cessation of occupation of the house as the principal home does not prevent the house from being let under a Scottish secure tenancy. However, it is a ground for eviction as is continuous absence by the tenant(s) and spouse/co-habitee for six months or more without reasonable excuse (Sch 2, Ground 5). See also ss17 and 18 (abandonment) and para 6.4 of the Agreement. The tenant has a duty at common law to take entry (Ersk II, 6, 3) and to furnish. It is thought to be an implied term at common law that in a lease of a dwelling house, the tenant is entitled to occupy with his family. The final sentence is contractual so that the landlord may know if the Matrimonial Homes (Family Protection) (Scotland) Act 1981 applies and if there is overcrowding. See paragraph 1.11 for definition of overcrowding.

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 liable for damage caused wilfully by third parties. (See notes to 5.10). Correspondingly, where the tenant suffers loss as a result of 3 ^rd 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 four week clause ties in with para 6.4 (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 2.4: Overcrowding is defined at 1.1, referring to section 135 of the 1987 Act. There is no definition in the 2001 Act relating to 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 for 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 Tenants' 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 clause 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 (3 ^rd 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 Sch 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.

Note 2.8: Contractual. This paragraph is unnecessary if the landlord undertakes the work. This paragraph preserves the rights of the landlord to a range of remedies following non-compliance by the tenant. The remedies are eviction (unlikely to be successful in practice), carrying out the work and recharging the tenant (and action for payment and or eviction if not paid), and action for specific implement (i.e. court order against tenant requiring him/her to carry out the work, usually sought with request for payment in the alternative). It should be noted that the wording of this paragraph alone would probably be insufficiently precise in itself to found an action for specific implement. A decree for specific implement based on the lease obligations must be specified in a clear and precise manner so that the defender is left in no doubt as to his/her obligations. The rule is that the courts will not grant an order for specific implement of a contractual obligation unless the order, deriving from that obligation, can be drafted sufficiently specifically as to leave the Defender tenant in no doubt as to what s/he has to do (Walker - Civil Remedies, Chp.13) In addition, the landlord cannot 'innovate' on the lease, i.e. attempt to force the tenant to carry out an obligation not clear within the lease itself. It follows that the contractual obligation must be capable of expressing the tenants duties with clarity. Hence the provision relating to the landlord's right to determine the precise arrangements which would depend on local conditions. Landlords should, as a matter of good practice, have in place arrangements for carrying out such work (and garden work) for those tenants who cannot reasonably be expected to do it themselves: e.g. people with severe disabilities, elderly people, etc.

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 twofold. First, to make clear to the tenant what behaviour is prohibited in an unambiguous way. Second, 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 6.3. 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 in 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. Firearm offences are increasing in Scotland. Some landlords and tenants are concerned about their use. This optional clause 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 Chp 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, Chp. 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 3.8: Landlords (and most organisations and individuals) are under a duty not to discriminate on the grounds of sex (Sex Discrimination Act 1975), race etc. (Race Relations Act 1976) or disability (Disability Discrimination Act 1995), subject to various exceptions. Article 14 of the European Convention on Human Rights, incorporated into UK law by the Human Rights Act 1998, prohibits discrimination against any person relating to any other Convention right, on any ground related to "status". Breach of these duties may result in legal action against the Landlord. Prohibition of discrimination on other grounds is a matter of good practice. See also s106 of the 2001 Act which obliges RSLs and local authorities to encourage equal opportunities and the observance of equal opportunities.