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

6. Joint Tenancies

6.1 Before a tenant can have someone added to their existing tenancy agreement as a joint tenant they must apply to their landlord for written permission to do so and get their landlord's written consent. The person the tenant wants to add as joint tenant, and any existing joint tenants, must apply in writing along with the tenant.

6.2 Section 12(1) of the 2014 Act makes the following changes to the 2001 Act:

• the proposed joint tenant must have lived at the property as their only or principal home for the 12 months before the tenant applies for them to become a joint tenant (previously there was no qualifying period); and
• the tenant, joint tenant or proposed joint tenant must have notified the landlord that the person they wish to become a joint tenant with is living in the house. The 12 month period does not start unless the landlord has been told that the person is living in the property as their only or principal home.

6.3 The 12 month period applies to anyone wanting to be a joint tenant including the tenant's spouse, civil partner or co-habiting partner.

6.4 Joint tenancies ensure that each person has exactly the same rights and responsibilities. While landlords should normally give a joint tenancy for all new and existing tenancies when it is requested and where the notification and residency requirements (if appropriate), have been met, there may be some circumstances where a sole tenancy may be more appropriate to protect the rights of an existing sole tenant. They will wish to consider whether there are any issues in relation to the person's residency in the house that could affect the future sustainability of the tenancy.

6.5 An example of where a joint tenancy may not be appropriate would be where an existing sole tenant comes up for an offer of a new tenancy and requests a joint tenancy with a new partner with a known history of antisocial behaviour or domestic abuse. In that situation landlords will want to ensure that the current sole tenant is not being pressured into requesting a joint tenancy and is given advice on the implications of entering into a joint tenancy. In such cases it may be in the best interests of the tenant to retain a sole tenancy.

Joint Tenancies - Transitional Provisions

6.6 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 11(6A) of the 2001 Act. An example of this is below.

6.7 A tenant notified their landlord on 5 April 2019 that his partner was living in the house as his only or principal home. They then apply to the landlord in writing for a joint tenancy on 30 November 2019. The 12 month residency requirement for a joint tenancy would be satisfied at the expiry of the 12 month period following notification, i.e. 4 April 2020. When considering any future application for a joint tenancy, the landlord will also wish to consider whether a joint tenancy is appropriate (see paragraphs 6.4 and 6.5 above and also paragraph 6.9 below).

Joint Tenancies - Notification and Applications

6.8 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 systems. 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.

6.9 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.