An Introduction to Tenancy Law in Scotland. Jim Bauld, Partner TC Young Solicitors

Transcription

1 An Introduction to Tenancy Law in Scotland Jim Bauld, Partner TC Young Solicitors

2 What is a Tenancy? an agreement between two parties referred to as the landlord and the tenant respectively, whereby the landlord gives the tenant the right to occupy premises in exchange for a periodic payment known as rent

3 Form of Lease Essential elements required to create a lease:- - parties - subjects - duration (tacit relocation) - rent Should be in writing but may not be a legal requirement to create a tenancy! Signed by landlord and tenant and witnessed by third party

4 Unfair Contract Terms The Unfair Terms in Consumer Contracts Regulations 1995 Apply to tenancy agreements A term that causes a significant imbalance in the parties' rights and obligations under the contract will be deemed unfair Unfair contract term will not be enforceable but rest of lease will still stand

5 Types of Tenancies Scottish Secure Tenancies Assured Tenancies Common Law Tenancies

6 Scottish Secure Tenancies Introduced by Housing (Scotland) Act 2001 Aimed at providing security of tenure with enhanced rights for tenants In general, all RSL tenancies converted to SSTs as of 30 September 2002

7 Scottish Secure Tenancies House let as separate dwelling Tenant is an individual and house is only or principal home Landlord is local authority/rsl/water or sewage authority Tenant can apply for others to be added as joint tenants no restrictions on numbers!

8 Exceptions to SSTs Premises occupied under a contract of employment. Police and fire service accommodation. Lettings to students Decants Temporary letting to a homeless person Tenancies under shared ownership agreements (defined in section 83). Agricultural and business premises. Houses forming part of buildings used for non-accommodation purposes. Houses leased by the landlord from someone else where the terms of the lease preclude letting under a Scottish secure tenancy.

9 Scottish Secure Tenancies Tenants rights:- Written Tenancy Agreement Repairs Compensation for Improvements Assignation/Subletting/Exchanges Statutory rights vs Contractual rights

10 Termination of a Scottish Secure Tenancy The Housing (Scotland) Act 2001 sets out the various ways in which a landlord can legally terminate a Scottish Secure Tenancy

11 Termination of SSTs by an eviction order abandonment tenant dies and no qualified successor, conversion of SST to short SST, by written agreement between the landlord and the tenant, or by 4 weeks' notice given by the tenant to the landlord.

12 Notice of Proceedings Prior to court action must serve tenant and qualifying occupiers with a Notice of Proceedings in terms of section 14 of the 2001 Act New forms of NOP from 1 st August 2012 for Rent Arrears actions and Non Rent Arrears actions following intro of PARS

13 Notice of Proceedings Must be served on tenant and any qualifying occupier Proceedings can only be raised after date specified in notice Notice must be in force at time of raising Court proceedings

14 Notice of Proceedings Should you accompany the Notice with a letter? - No legal requirement to do so - Have to be very careful with wording - May have consequences at court

15 Format of Notice Must use correct format of Notice as set by statutory instrument Must set out ground(s) for repossession as stated in schedule 2 of the Housing (Scotland) Act 2001 Must give full reasoning in support of ground

16 Date in Notice of Proceedings Date after which court proceedings can be raised 4 weeks from the date of service of the notice or The ish date of the tenancy..whichever is later

17 Reasonableness required to establish for all grounds of repossesion must satisfy the court regardless of whether the action is defended court will expect rsl to have given every opportunity to cure the breach of the tenancy

18 Information Required by the Court financial circumstances housing benefit position arrears direct position steps taken to contact tenant family composition liaison with other authorities does the tenant know?

19 By operation of section 18(2) Abandonment If Landlord must have REASONABLE grounds for believing that; (a) The house is unoccupied (b) The tenant does not intend to occupy the tenant s home it as

20 Abandonment First notice served must; state that the landlord has reason to believe that the house is unoccupied and that the tenant does not intend to occupy it as the tenant's home, require the tenant to inform the landlord in writing within 4 weeks of service of the notice if the tenant intends to occupy the house as the tenant's home, and inform the tenant that, if it appears to the landlord at the end of that period that the tenant does not intend so to occupy the house, the tenancy will be terminated with immediate effect.

21 Abandonment If within 4 weeks of service of the first notice there is no contact, the landlord can serve a second notice bring tenancy to an end with IMMEDIATE EFFECT. WITHIN 4 WEEKS definition?

22 Succession The death of a tenant terminates an SST unless there is a QUALIFIED PERSON to succeed to the tenancy Who is a qualified person?

23 3 CATEGORIES: Succession -(i) Spouse, civil partner or co-habiting partner of either sex or the remaining joint tenant (ii) Members of the tenant s family providing they are aged at least 16 years and that the house was their only or principal home at the time of the tenant s death (iii) A carer aged at least 16 years where the house was their only or principal home at the time of the tenant s death and where they gave up their only or principal home to care for the tenant or a member of the tenant s family

24 Succession - If more than one qualifying person, they can decide who to succeed, failing which the landlord decides - If no qualified person, tenancy is terminated as at date of death - Only TWO rounds of succession - after second round, tenancy terminates

25 Succession Specially adapted accommodation: - Qualifying person cannot succeed to specially adapted accommodation - Landlord must make suitable alternative accommodation available - Schedule 2 of 2001 Act details procedure for offering alternative accommodation

26 Conversion to Short SST A landlord can convert a tenant s existing Scottish Secure Tenancy to a short Scottish Secure Tenancy if the tenant or a person residing with the tenant becomes subject to an antisocial behaviour order.

27 Conversion to Short SST Notice on tenant Full SST to Short SST Doesn t apply to interim ASBOS Support required Right to appeal (S35(5))

28 Granting Short SSTs Seven grounds set out in Schedule 6 of 2001 Act include: - Previous order for eviction for asb - Tenant or household member subject to ASBO - Temporary letting for person seeking accommodation - Temporary letting pending development - Temporary letting for homeless person - Temporary letting for person requiring housing support - Property not owned by landlord

29 Granting Short SSTs Notice under section 34 must be served prior to signing tenancy agreement Term of tenancy must be at least 6 months

30 Terminating a Short SST Procedure for compulsory repossession Notice to Quit S36(3) Notice (The Short Scottish Secure Tenancies (Proceedings for Possession) Regulations 2002)

31 Terminating a Short SST - May be possible to terminate prior to ish - Depends on wording of tenancy agreement - May require to irritate lease - Complex procedure

32 By Written Agreement Landlord and tenant can agree in writing to terminate the tenancy. The tenancy will be terminated on the agreed date. No period of notice required.

33 By 4 Weeks Notice Given by Tenant to Landlord - Notice must be in writing implied by 2001 Act - Tenant can revoke notice during four week period - To protect position, sign acceptance on tenant s termination to create written agreement

34 REPAIRS DUTY (SSTs) Housing (Scotland) Act 2001 schedule 4 landlord s duty to ensure at start of tenancy that house is wind and watertight and in all other respects reasonably fit for human habitation Paragraph 1(a)

35 STATUTORY DUTY Housing (Scotland) Act 201..schedule 4 Duty to keep house wind and watertight and reasonably fit for human habitation continues... throughout the tenancy Paragraph 1(b)

36 PRE-TENANCY INSPECTION Landlord must before commencement of tenancy Inspect the house Identify any work needed to comply with reasonable fitness duty Notify tenant of that work Schedule 4, paragraph 2

37 REPAIRS DUTIES Repair work must be done within a reasonable time and includes duty to make good any damage caused by carrying out the work Schedule 4, paragraph 3

38 Assured Tenancies Introduced by the Housing (Scotland) Act 1988 What is an Assured Tenancy? house is let as a separate dwelling the tenant is an individual the tenant occupies the house as his only or principal home S.11, 12 and 13 of 1988 Act

39 Exceptions Tenancies with low or no rent Tenancies of shops licensed premises Certain agricultural land/holdings Lettings to students by educational institutions Holiday lets Resident landlords SSTs and shared ownership

40 Landlords Duties Landlord Registration provide written Tenancy Agreement provide Tenant Information Pack meet Repairing Standard Tenancy Deposit Scheme must not charge unlawful premiums

41 Short Assured Tenancies What is a Short Assured Tenancy?: A type of assured tenancy Minimum of 6 months AT5 served prior to signing agreement Intended to provide landlord increased rights of repossession

42 Termination of tenancy Must terminate tenancy at the end date by serving Notice to Quit Must include prescribed information Must be served by recorded delivery or Sheriff Officers

43 The Notice to Quit The End(or ish ) Date - Doctrine of tacit relocation in Scotland - If tenancy not brought to an end after initial term, will continue on same terms as before - May be provision in agreement for tenancy to continue on a monthly/bi-monthly basis - If not, tenancy will roll over for same term as before, e.g. 6 months

44 The Notice to Quit General rule for period of notice Tenancy less than 6 months 28 days Tenancy more than 6 months 40 days

45 Common Law Tenancies Anything that s not an Assured Tenancy/SST! Occupancy Agreements Service Occupancies Occupants Rights Repairs, occupation, etc No security of tenure termination by Notice to Quit

46 Repairs private sector Housing (Scotland ) Act 2006 Sections 12 to20 The repairing standard

47 Private Rented Housing Committee determines whether landlord has complied with repair duty. if not issue repairing standard enforcement order

48 Repairing Standard Enforcement Order Specifies Works required Period for completion Any other steps required PHRC can vary or revoke orders at any time

49 Failure to Comply with RSEO PHRC must Serve notice on local authority Decide whether to make rent relief order Failure to comply is criminal offence Entering new tenancy while RSEO in place is also criminal offence

50 Enforcing Tenancy Obligations Where tenant in breach of contract, landlord can take action Warning letter Action for implement/interdict/damages

51 Enforcing Tenancy Obligations Examples:- (1)Tenant has dog in property without obtaining permission. Dog causing nuisance to neighbours. (2)Tenant is refusing to allow access for an inspection of the property to be carried out