Short Scottish Secure Tenancies for antisocial behaviour and miscellaneous changes: statutory guidance for social landlords

Annex A – Consolidated Legislation

This Annex has been prepared to assist the reader of this guidance. Its accuracy is not guaranteed and should not be relied upon. 

Sections 34-37 Of The Housing (Scotland) Act 2001: As Amended By Sections 7-11 Of The Housing (Scotland) Act 2014

34 Short Scottish secure tenancies

(1) A tenancy of a house is a short Scottish secure tenancy if—
(a) it would have been a Scottish secure tenancy but for this section,
(b) it is for a term of not less than 6 months, and
(c) before its creation, the prospective landlord serves on the prospective tenant a notice under subsection (4).

(2) A prospective landlord may serve a notice under subsection (4) only where any of the paragraphs of schedule 6 is satisfied.

(3) The Scottish Ministers may by order modify that schedule.

(4) A notice under this subsection—
(a) must be in such form as the Scottish Ministers may prescribe by regulations,
(b) must state that the tenancy to which it relates is to be a short Scottish secure tenancy and specify the paragraph of that schedule which is satisfied in relation to it, and
(c) must specify the term of the tenancy.

(5) At the ish of the tenancy it may continue—
(a) by tacit relocation, or
(b) by express agreement,
and the continued tenancy is a short Scottish secure tenancy despite subsection (1) not being satisfied.

(5A) Subsection (5) does not apply to a tenancy mentioned in subsection (6A).

(6) The provisions of this Chapter, except sections 11(2) and (4), 12 and 22 and schedules 1 and 3, apply to a short Scottish secure tenancy as they do to a Scottish secure tenancy.

(6A) A tenancy which is a short Scottish secure tenancy by virtue of section 35 or paragraph 1, 2 or 2A of schedule 6 has a term of 12 months from the day on which the tenancy is granted.

(7) Where a tenancy is a short Scottish secure tenancy by virtue of section 35 or paragraph 1, 2 or 2A of schedule 6 the landlord must provide, or ensure the provision of, such housing support services as it considers appropriate with a view to enabling the conversion of the tenancy to a Scottish secure tenancy by virtue of section 37.

(8) The Scottish Ministers may issue guidance as to the housing support services which are appropriate for the purposes of subsection (7).

(9) A landlord must have regard to any guidance published by the Scottish Ministers—
(a) before creating a tenancy which is a short Scottish secure tenancy by virtue of section 35 or paragraph 1, 2 or 2A of schedule 6, and
(b) when taking any steps in relation to such a tenancy with a view to—
(i) extending the term of the tenancy under section 35A, or
(ii) raising proceedings for the recovery of possession of the house under section 36.

(10) Before publishing any guidance mentioned in subsection (9), the Scottish Ministers must consult such persons as they consider appropriate.

35 Conversion to short Scottish secure tenancy

(1) A Scottish secure tenancy of a house becomes a short Scottish secure tenancy by virtue of this section immediately on the landlord serving on the tenant a notice under subsection (3).

(2) The landlord may serve a notice under subsection (3) only where—
(a) the tenant (or any one of joint tenants) or a person residing or lodging with, or a subtenant of, the tenant is subject to an antisocial behaviour order under—
(i) section 234AA of the Criminal Procedure (Scotland) Act 1995 (c.46), or
(ii) section 4 of the Antisocial Behaviour etc. (Scotland) Act 2004 (asp 8), or
(b) the tenant (or any one of joint tenants), a person residing or lodging with, or a subtenant of, the tenant, or a person visiting the house has, within the period of 3 years preceding the date of service of the notice—
(i) acted in an antisocial manner in relation to another person residing in, visiting or otherwise engaged in lawful activity in the locality of a house occupied by the person, or
(ii) pursued a course of conduct amounting to harassment of such other person, or a course of conduct which is otherwise antisocial conduct in relation to such other person.

(3) A notice under this subsection must—
(a) state that the Scottish secure tenancy to which it relates becomes a short Scottish secure tenancy by virtue of service of the notice,
(b) specify the tenant or other person who is subject to the anti-social behaviour order or, as the case may be, has behaved as described in subsection (2)(b),
(c) if the notice is served under subsection (2)(b), specify—
(i) the actions of the tenant or other person which the landlord has taken into account, and
(ii) the landlord’s reasons for serving the notice, and
(d) explain the right of appeal conferred by subsection (5).

(3A) A short Scottish secure tenancy created by virtue of this section has a term of 12 months from the day on which the landlord serves a notice under subsection (3).

(4) Where a tenancy becomes a short Scottish secure tenancy by virtue of this section—
(a) subsection (5) of section 34 does not apply to the tenancy, but
(b) otherwise subsection (6) of that section does apply to the tenancy.

(5) Where a Scottish secure tenancy becomes a short Scottish secure tenancy by virtue of this section, a tenant who is aggrieved by the conversion may raise proceedings by summary application.

(6) In such proceedings the court may, if it considers that there are good grounds for doing so, grant a declarator that the notice under subsection (3) is of no effect.

“(7) In this section —
“antisocial”, in relation to an action or course of conduct, means causing or likely to cause alarm, distress, nuisance or annoyance,
“conduct” includes speech, and a course of conduct must involve conduct on at least two occasions, and
“harassment” is to be construed in accordance with section 8 of the Protection from Harassment Act 1997 (c.40).

35A Extension of term of short Scottish secure tenancy

(1) The landlord under a tenancy which is a short Scottish secure tenancy by virtue of section 35 or paragraph 1, 2 or 2A of schedule 6 may extend the term of that tenancy by 6 months from the day which would otherwise be the day of expiry of the tenancy.

(2) Such an extension may not be made unless—
(a) the tenant is in receipt of housing support services, and
(b) the landlord has, on or before the day which is 2 months before the day which would otherwise be the day of expiry of the tenancy, served on the tenant a notice informing the tenant of—
(i) the extension, and
(ii) the reasons for the extension.

(3) A landlord may not give a notice if the landlord has previously given a notice under subsection (2) in relation to that short Scottish secure tenancy.

36 Recovery of possession

(1) The landlord under a short Scottish secure tenancy may raise proceedings by way of summary cause for recovery of possession of the house which is the subject of the tenancy.

(2) Such proceedings may not be raised unless—
(a) the landlord has served on the tenant a notice complying with subsection (3),
(aa) in the case of a short Scottish secure tenancy created by virtue of section 35 or paragraph 1, 2 or 2A of schedule 6, the landlord considers that any obligation of the tenancy has been broken,
(b) the proceedings are raised on or after the date specified in the notice, and
(c) the notice is in force at the time when the proceedings are raised.

(3) A notice under subsection (2) must be in such form as the Scottish Ministers may prescribe by regulations, and must—
(a) state that the landlord requires possession of the house,
(aa) state the reason why the landlord is seeking recovery of possession (including, in a case where subsection (2)(aa) applies, the obligations which the landlord considers to have been broken),
(b) specify a date, not earlier than—
(i) 2 months, or such longer period as the tenancy agreement may provide, from the date of service of the notice, or
(ii) the date on which the tenancy could have been brought to an end by a notice to quit had it not been a short Scottish secure tenancy,
whichever is later, on or after which the landlord may raise proceedings for recovery of possession.

(4) A notice under subsection (2) ceases to be in force 6 months after the date specified in it in accordance with subsection (3)(b) or when it is withdrawn by the landlord, whichever is earlier.

(4A) A tenant may, before the end of the period of 14 days beginning with the day of service of a notice under subsection (2), apply to the landlord for a review of a decision to seek recovery of possession of the house which is the subject of the tenancy.

(4B) If an application for a review under subsection (4A) is made, the landlord must, before the day specified in the notice by virtue of subsection (3)(b)—
(a) confirm its decision to seek recovery of possession or withdraw its notice under subsection (2),
(b) notify the tenant of its decision on the review, and
(c) where its decision on the review is to confirm the decision to seek recovery of possession, notify the tenant of the reasons.

(4C) The Scottish Ministers may by regulations make further provision about the procedure to be followed in connection with a review following an application under subsection (4A).

(5) The court must make an order for recovery of possession if it appears to the court that—
(a) the tenancy has reached the ish referred to in section 34(5) or, in a case where subsection (2)(aa) applies, the end of the term applicable to the tenancy in accordance with section 34(6A), 35(3A) or 35A(1),
(b) tacit relocation is not operating,
(c) no further contractual tenancy (whether or not a short Scottish secure tenancy) is in existence, and
(d) subsection (2) has been complied with.

(6) An order under subsection (5) must appoint a date for recovery of possession and has the effect of—
(a) terminating the tenancy, and
(b) giving the landlord the right to recover possession of the house, at that date.

(6A) Where a landlord raises proceedings under this section, the landlord must give notice of the raising of the proceedings to the local authority in whose area the house in question is situated, unless the landlord is that local authority.

(6B) Notice under subsection (6A) is to be given in the form and manner prescribed under section 11(3) of the Homelessness etc. (Scotland) Act 2003 (asp 10).

(7) This section is without prejudice to sections 14 and 16, but subject to the modification mentioned in subsection (8).

(8) In relation to the recovery of possession of the house which is the subject of a short Scottish secure tenancy, section 14(4) is to be read as if for paragraph (b) there were substituted—
“(b) a date, not earlier than 4 weeks from the date of service of the notice on or after which the landlord may raise proceedings for recovery of possession,”.

37 Conversion to Scottish secure tenancy

(1) Where—
(a) a tenancy is a short Scottish secure tenancy by virtue of section 35 or paragraph 1, 2 or 2A of schedule 6, and
(b) the landlord has not served on the tenant a notice under section 14(2) or 36(2) before the expiry of the relevant period,
the tenancy becomes, by virtue of this section, a Scottish secure tenancy with effect from the expiry of the relevant period.

(1A) In this section, the “relevant period” is—
(a) the period of 12 months following the creation of the tenancy, or
(b) if an extension notice has been served under section 35A, the period of 18 months following the creation of the tenancy.

(2) Where subsection (1)(a) applies and the landlord has, in the relevant period, served a notice referred to in subsection (1)(b), then—
(a) if the notice—
(i) has ceased to be in force in accordance with section 14(5) or, as the case may be, 36(4), or
(ii) has been withdrawn by the landlord without proceedings for recovery of possession having been raised, the tenancy becomes, by virtue of this section, a Scottish secure tenancy with effect from the date on which the notice ceased to be in force or was withdrawn or the expiry of the relevant period, whichever is the later,
(b) if proceedings for recovery of possession have been raised and have been finally determined in favour of the tenant, the tenancy becomes, by virtue of this section, a Scottish secure tenancy with effect from the date on which the proceedings were finally determined or the expiry of the relevant period, whichever is the later.

(3) For the purposes of subsection (2)(b) proceedings are finally determined when—
(a) the period for appealing against the interlocutor disposing of the proceedings has expired without an appeal being lodged, or
(b) where an appeal has been lodged, the appeal is withdrawn or finally determined.

(4) Where a tenancy becomes a Scottish secure tenancy by virtue of this section, the landlord must notify the tenant of that fact and of the date on which the tenancy became a Scottish secure tenancy.

(5) Subsection (6) applies to a tenancy which—
(a) became a short Scottish secure tenancy by virtue of section 35, and
(b) becomes a Scottish secure tenancy by virtue of this section.

(6) The term of the tenancy is the term which applied immediately before the tenancy became a short Scottish secure tenancy.

Section 31 Of The Housing (Scotland) Act 1987: As Amended By Section 7(5) Of The Housing (Scotland) Act 2014

31 Duties to persons found to be homeless.

(1) This section applies where a local authority are satisfied that an applicant is homeless.

(2) Where they are not satisfied that he became homeless intentionally, they shall, unless they notify another local authority in accordance with section 33 (referral of application on ground of local connection) secure that permanent accommodation becomes available for his occupation.

(2A) In a restricted case the local authority shall cease to be subject to the duty under subsection (2) if the applicant, having been informed of the matters mentioned in subsection (2B)—
(a) accepts a private accommodation offer, or
(b) refuses such an offer.

(2B) The matters are—
(a) the possible consequence of refusal of the offer, and
(b) that the applicant has the right to request a review of the decisions mentioned in section 35A(2)(e).

(2C) In this section “a restricted case” means a case falling within subsection (2) where the local authority would not be satisfied as mentioned in subsections (1) and (2) without having had regard to a restricted person.

(2D) For the purposes of this Part an offer is a private accommodation offer if—
(a) it is an offer of a short assured tenancy made by a landlord to the applicant in relation to any accommodation which is, or may become, available for the applicant’s occupation,
(b) it is made, with the approval of the local authority, in pursuance of arrangements made by them with the landlord with a view to bringing their duty under subsection (2) to an end, and
(c) the tenancy being offered is for a period of at least 12 months.

(2E) The local authority shall not approve a private accommodation offer unless they are satisfied that it is reasonable for the applicant to accept the offer.

(2F) For the purposes of subsection (2E) an applicant may reasonably be expected to accept an offer even though he is under contractual or other obligations in respect of his existing accommodation, provided he is able to bring those obligations to an end before he is required to take up the offer.

(2G) In a restricted case the local authority shall, so far as reasonably practicable, bring their duty under subsection (2) to an end as mentioned in subsection (2A).

(2H) Subsections (2A) to (2G) are without prejudice to any other way in which the local authority can cease to be subject to the duty under subsection (2).

(3) In a case not falling within subsection (2), the local authority shall—
(a) secure that accommodation is made available for the applicant’s occupation for such period as they consider will give him a reasonable opportunity of himself securing accommodation for his occupation; and
(b) furnish him with advice and assistance of such type as may be prescribed, in any attempts he may make to secure that accommodation becomes available for his occupation.

(4). . .

(5) For the purposes of subsection (2), “permanent accommodation” includes accommodation—
(a) secured by a Scottish secure tenancy,
(b) secured by an assured tenancy that is not a short assured tenancy,
(c) where paragraph 1, 2 or 2A of schedule 6 to the Housing (Scotland) Act 2001 (asp10) is satisfied in relation to the applicant, secured by a short Scottish secure tenancy.

Section 14 Of The Housing (Scotland) Act 2001: Showing The Substitution Of Section 14(4)(B) Required By Section 36(8) Of The 2001 Act (As Inserted By Section 11(F) Of The 2014 Act) In Respect Of Short Scottish Secure Tenancies

14 Proceedings for possession

(1) The landlord under a Scottish secure tenancy may raise proceedings by way of summary cause for recovery of possession of the house.

(2) Such proceedings may not be raised unless—
(a) the landlord has served on the tenant and any qualifying occupier a notice complying with subsection (4),
(b) the proceedings are raised on or after the date specified in the notice, and
(c) the notice is in force at the time when the proceedings are raised.

(2A) Where such proceedings are to include the ground that rent lawfully due from the tenant has not been paid (as set out in paragraph 1 of schedule 2)—
(a) the notice under subsection (2) must not be served unless the landlord has complied with the pre-action requirements in section 14A, and
(b) the proceedings may not be raised unless the landlord has confirmed to the court in such form as the Scottish Ministers may prescribe by regulations that those requirements have been complied with.

(2B) Where such proceedings are to include a ground for recovery of possession set out in paragraph 2 of schedule 2, the landlord must have regard to any guidance published by the Scottish Ministers before raising such proceedings in relation to recovering possession of the house.

(2C) Before publishing any guidance mentioned in subsection (2B), the Scottish Ministers must consult such persons as they consider appropriate.

(3) Before serving a notice under subsection (2) the landlord must make such inquiries as may be necessary to establish so far as is reasonably practicable whether there are any qualifying occupiers of the house and, if so, their identities.

(4) A notice under subsection (2) must be in such form as the Scottish

Ministers may prescribe by regulations, and must specify—
(a) the ground, being a ground set out in Part 1 of schedule 2, on which proceedings for recovery of possession are to be raised;
(b) a date, not earlier than 4 weeks from the date of service of the notice on or after which the landlord may raise proceedings for recovery of possession
(c) where subsection (2A) applies, the steps taken by the landlord which the landlord considers to constitute compliance with the pre-action requirements in section 14A.

(5) A notice under subsection (2) ceases to be in force 6 months after the date specified in it in accordance with subsection (4)(b) or when it is withdrawn by the landlord, whichever is earlier.

(5A) Where a landlord raises proceedings under this section, the landlord must give notice of the raising of the proceedings to the local authority in whose area the house in question is situated, unless the landlord is that local authority.

(5B) Notice under subsection (5A) is to be given in the form and manner prescribed under section 11(3) of the Homelessness etc. (Scotland) Act 2003 (asp 10).

(6) In this section and section 15, “qualifying occupier” means a person who occupies the house as that person’s only or principal home and who is—
(a) a member of the tenant’s family aged at least 16 years,
(b) a person to whom the tenant has, with the landlord’s consent under section 32(1), assigned, sublet or otherwise given up possession of the house or any part of it, or
(c) a person whom the tenant has, with such consent, taken in as a lodger.

Schedule 6 Of The Housing (Scotland) Act 2001 Act: As Amended By Sections 7(4) And 8 Of The 2014 Act

Previous anti-social behaviour

1 An order for recovery of possession has, within the period of 3 years preceding the date of service of the notice, been made against the prospective tenant (or any one of prospective joint tenants) in proceedings—
(a) under the Housing (Northern Ireland) Order 1983 (S.I.1983/1118) on ground 2 of Schedule 3,
(b) under the Housing Act 1985 (c.68), on ground 2 of Schedule 2,
(c) under the 1987 Act, on a ground set out in paragraph 2 or 7 of Schedule 3,
(d) under the 1988 Act, on ground 15 of Schedule 5,
(e) under the Housing Act 1988 (c.50), on ground 14 of Schedule 2,
(f) under this Act on a ground set out in paragraph 2 or 7 of schedule 2.

Anti-social behaviour order

2 The prospective tenant (or any one of prospective joint tenants) or a person who it is proposed will reside with the prospective tenant is subject to an anti-social behaviour order—
(a) under section 234AA of the Criminal Procedure (Scotland) Act 1995 (c. 46); or
(b) under section 4 of the Antisocial Behaviour etc (Scotland) Act 2004 (asp 8).

Other antisocial behaviour

2A(1) A person mentioned in sub-paragraph (2) has, within the period of 3 years preceding the date of service of the notice—
(a) acted in an antisocial manner in relation to another person residing in, visiting or otherwise engaged in lawful activity in the locality of a house occupied by the prospective tenant or by a person who it is proposed will reside with the prospective tenant, or
(b) pursued a course of conduct amounting to harassment of such other person, or a course of conduct which is otherwise antisocial conduct in relation to such other person.

(2) The persons are—
(a) the prospective tenant,
(b) any one of prospective joint tenants,
(c) a person visiting a house occupied by the prospective tenant or by a person who it is proposed will reside with the prospective tenant, and
(d) a person who it is proposed will reside with the prospective tenant.

(3) In sub-paragraph (1)—
“antisocial”, in relation to an action or course of conduct, means causing or likely to cause alarm, distress, nuisance or annoyance,
“conduct” includes speech, and a course of conduct must involve conduct on at least two occasions, and
“harassment” is to be construed in accordance with section 8 of the Protection from Harassment Act 1997 (c.40).

Temporary letting to person seeking accommodation

3 The house is to be let expressly on a temporary basis to a person moving into the area in order to take up employment there, and for the purpose of enabling that person to seek accommodation in the area.

Temporary letting pending development

4(1) The house is to be let to a person expressly on a temporary basis, pending development affecting the house.
(2) In sub-paragraph (1), “development” has the same meaning as in section 26 of the Town and Country Planning (Scotland) Act 1997 (c.8).

Accommodation for homeless persons

5 The house is to be let to a person expressly on a temporary basis, for a period of not less than 6 months, in fulfilment of a duty imposed on a local authority by Part II (homeless persons) of the 1987 Act.

Accommodation for person in receipt of housing support S

6 The house is to be let expressly on a temporary basis to a person—
(a) to whom no other paragraph of this schedule applies, and
(b) who is in receipt of a housing support service.

Accommodation in property not owned by landlordS

7 The house to be let is leased by the landlord from another body and the terms of the lease preclude the letting of the house by the landlord under a Scottish secure tenancy.

Temporary letting where other property owned

7A(1) The house is to be let expressly on a temporary basis to a person pending the making of arrangements in relation to a property mentioned in sub-paragraph (2) which will allow the person’s housing needs to be met.
(2) The property is heritable property owned by the person or a person who it is proposed will reside with that person.