This week the final provisions of the Housing (Scotland) Act 2014, amending the way Scottish secure tenancies (SSTs) and short Scottish secure tenancies (SSSTs) operate, comes into force. Social landlords should be aware of these changes, which come into effect on 1 November 2019, and alter current provisions for assignation, subletting, joint tenancies and succession of SSTs and SSSTs.

Let's examine each of these areas in turn, noting the changes and obligations upon both tenants and landlords.

Assignation

What is an assignation?

  • Assignation is where a tenant passes their tenancy to another person.

What is required to assign a tenancy?

  • A tenant wishing to assign their tenancy must make an application in writing to their landlord requesting permission for the assignation. They must gain their landlord's consent before this takes place.

What is the law pre 1 November 2019?

  • Pre 1 November 2019, to assign a tenancy, the property must be the tenant's only or principal home for six months, ending on the date of the request to assign the tenancy. There is no prescribed time limit for the proposed assignee to have lived in the property.

What is the law after 1 November 2019?

  • From 1 November 2019, to assign a tenancy, the property must have been the tenant's only or principal home for 12 months prior to making a written request.
  • The proposed assignee must have lived at the property as their sole or principal home for 12 months before the application is made.
  • The 12 month period only starts when the landlord has been notified that the proposed assignee is living in the property as their only or principal home.

What should we do as landlords?

  • Landlords must treat any notification provided before 1 November 2019 - by a tenant or proposed assignee - that they are living in the property as their only or principal home, as notification of the 12 month residency requirement.
  • Landlords should list in their tenancy information the methods by which notification can be given.
  • In relation to a child in a household turning 16, and living in the property as their only or principal home, the landlord should already be aware of their residence within the property and ensure the notification requirements are satisfied.
  • Landlords can refuse to assign the tenancy where reasonable to do so. Section 32 of the 2001 Act lists a number of grounds considered as reasonable grounds for refusal such as;
  • Service of a notice of proceedings;
  • Eviction order granted against the tenant, or
  • Rent proposed is not reasonable.

Whilst this list is not exhaustive, the 2014 Act introduces new grounds for refusal including;  

  • The assignee, would not receive a reasonable preference in line with the landlords allocations policy.
  • The assignation would result in the house being under-occupied.

    Subletting

    What is subletting?

    Subletting is when an existing tenant lets all or part of the tenancy to someone else.

    What is required to sublet a tenancy?

    • A tenant wishing to sublet their tenancy must make an application in writing to their landlord requesting permission for the sublease. They must gain their landlord's consent.

    What is the law pre 1 November 2019?

    • Pre 1 November 2019, the tenant must have resided in the property as their only or principal home for a period of six months prior to making the application to sublet.

    What is the law post 1 November 2019?

    • After 1 November 2019, to be able to sublet the tenancy, the house must have been the tenant's only or principal home for 12 months before they make a written request to sublet the tenancy.
    • Any other person may sublet the home, as long as they have notified the landlord that the house is their only or principal home. 12 months requires to have passed since the date of notification, with no break in residency.
    • There is no requirement for the sub-tenant to have resided in the property for a period of time prior to the application being made.

    What should we do as landlords?

    • Landlords must treat any notification provided before 1 November 2019 by a tenant or other person living in the house that they are living in the property, as their only or principal home, the start of the 12 month residency requirement.
    • Landlords should list in their tenancy information the methods by which notification can be given.
    • In relation to a child in a household turning 16, and living in the property as their only or principal home, the landlord should already be aware of their residence within the property and ensure the notification requirements are satisfied.
    • Upon receipt of notification, the landlord should consider whether it is appropriate to grant the application to sublet. Subletting can also be refused on the same grounds as assignation.

    Joint tenancies

    What is a joint tenancy?

    A joint tenancy is where the landlord has entered into a tenancy agreement with more than one tenant.

    What is required to add a joint tenant to a tenancy?

    • A tenant wishing to add someone to their tenancy must make an application in writing to their landlord requesting permission. The proposed joint tenant and any other current joint tenants must also apply in writing to the landlord. They must gain their landlord's consent.

    What is the law pre 1 November 2019?

    • Prior to 1 November 2019, there was no prescribed timescale for a prospective joint tenant to reside in the property prior to the application being made. The tenant would simply make a request for a joint tenant to be added to the property.

    What is the law post 1 November 2019?

    • From 1 November 2019, the proposed joint tenant must have resided in the property for a period of 12 months before the application is granted. Therefore, the tenant, joint tenant or proposed joint tenant must give notification to the landlord that the proposed joint tenant is living in the property as their only or principal home. After the expiry of 12 months, the proposed joint tenant can be added to the tenancy.
    • It should be noted that the 12 month period includes applications for spouses, civil partners or co-habiting partners to be added to the tenancy.

    What should we do as landlords?

    • Landlords must treat any notification provided before 1 November 2019 by a person living in the house that they are living in the property as sole or principal home, as being notification of the start of the 12 month residency requirement.
    • Landlords should list in their tenancy information the methods by which notification can be given.
    • In relation to a child in a household turning 16, and living in the property as their only or principal home, the landlord should already be aware of their residence within the property and ensure the notification requirements are satisfied.
    • Upon receipt of notification, the landlord should consider whether it is appropriate for the proposed joint tenant to live in the property. Care should be taken to avoid overcrowding.

    Succession

    What is succession?

    Succession of a Scottish secure tenancy is the transfer of the contractual tenancy from the tenant to another person when a tenant passes away.

    What is the law pre 1 November 2019?

    • The Housing (Scotland) Act 2001 provides for a Scottish secure tenancy to pass to a qualified person on the date of the tenant's death. A qualified person is narrated within the 2001 Act and includes;
      • The tenants spouse or civil partner;
      • Those living as husband and wife or in a relationship having the characteristics of a civil partnership for a period of six months prior to the date of death;
      • A surviving joint tenant;
      • A member of the tenant's family over 16;
      • A carer who resides in the property as their only or principal home.

    What is the law post 1 November 2019?

    • There is no change to the automatic status of qualified person status for spouses, civil partners or joint tenants, who have lived in the property as their only or principal home, at the time of their death.
    • From 1 November 2019, qualified person's including cohabitants, members of the deceased tenant's family over 16, and carers above the age of 16 who lived in the property as their only or principal home, can only succeed the tenancy if notification has been provided to the landlord that they are residing in the property 12 months prior to the date of death.

    What should we do as landlords?

    • Landlords must treat any notification of a qualified person living in the property given before 1 November 2019 as notification of the start of the 12 month residency requirement.
    • Landlords should list in their tenancy information the methods by which notification can be given.
    • In relation to a child in a household turning 16, and living in the property as their only or principal home, the landlord should be aware of their residence in the property, and ensure the notification requirements are satisfied.
    • Landlords should act sensitively and quickly.
    • Where there is no right to succeed, landlords cannot grant a succession to the tenancy. They can, however allocate a new tenancy. Allocations policies should be drafted to allow such flexibility.
    • Landlords should be particularly sensitive in the case of carers who do not fulfil the criteria as qualifying persons.
    • Landlords should clearly set out how applications may be made.

    The Scottish Government has produced helpful guidance on the new changes. Requests to change the status of a tenancy occur regularly and therefore, it is important that all social landlords are aware of the upcoming changes. Staff should be fully trained to apply the new legislation when it comes into force on 1 November 2019.

    Contributor

    Fiona McLeod

    Legal Director