Scottish Secure and Short Scottish Secure Tenancies: guidance for social landlords

5. Subletting

5.1 Before a tenant can sublet all or part of their home they must apply in writing to their landlord for written permission and get their landlord's written consent.

5.2 Section 12(2) of the 2014 Act makes the following changes to the 2001 Act:

• the tenant must have been the tenant of the house throughout the 12 months immediately before they apply for written permission to sublet their home (previously there was no qualifying period); or
• if they were not the tenant throughout that period, the house must have been their only or principal home during those 12 months; and the person who was the tenant at that time must have notified the landlord that the person who is now the tenant was living there.

The 12 month period does not start until the landlord has been notified. An example of this could be where the tenant was not the tenant throughout the previous 12 months but has during this period succeeded to the tenancy and immediately wants to sublet it.

5.3 There are no residency conditions for the person that wants to live in the property as a sub-tenant.

Subletting - Transitional Provisions

5.4 A notification given before 1 November 2019 by an individual living in the house in question as their only or principal home, or by any other person who was the tenant of the house in question when the notice was given, is to be treated by the landlord as notification of the start of the new 12 month residency requirement introduced in section 32(1)(c) of the 2001 Act. An example of this is below.

5.5 A person who succeeded to a tenancy on or before 2 November 2018, applies to the landlord for written permission to sublet that house on or after 1 November 2019. As the house had been the person's only or principal home for 12 months ending on the 1 November 2019, the transitional protection would apply and the 12 month qualifying period for subletting will be satisfied from the date of application. The landlord will however also wish to consider whether it is reasonable to allow the sublet (see paragraph 5.7 below).

Subletting - Notification and Applications

5.6 Landlords should set out clearly in their tenancy information, such as tenants' handbooks, which methods of notification they will accept and who the notification should be made to. For example this could include notification by email or letter or by the tenant updating their household information on web-based tenancy management sites. Where a child in the household reaches the age of 16, landlords will want to take a practical approach to the notification of this information. For example, if they were part of the household when the house was allocated and/or it is their long-term and principal home, the landlord will know who is living in the property and that should be considered as notification.

5.7 Where landlords are notified that someone has moved into the property, in line with current practice, they will wish to consider whether it is appropriate for that person to live in the house. For example if this results in overcrowding, they may refuse permission to remain in the property. The notification will also give landlords an opportunity to identify any other issues arising from the person's residency in the house, such as support needs.