Housing (Scotland) Act 1988

Part I — Scottish Homes

Establishment and functions

Scottish Homes

1

• (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (3) the Scottish Ministers shall have the general functions of—

• (a) providing, and assisting in the provision of, finance to persons or bodies intending to provide, improve, repair, maintain or manage housing;

• (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (c) promoting owner-occupation (especially by those seeking to purchase for the first time), the wider ownership of housing by its occupants and a greater choice of tenancy arrangements;

• (d) promoting the provision and improvement of housing and the improvement of management of housing (whether by its occupants or otherwise);

• (e) promoting and assisting the development of social landlords, ... ;

• (f) undertaking, and assisting the undertaking of, the development, redevelopment and improvement of the physical, social, economic and recreational environment related to housing;

• (g) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

General functions of Scottish Homes

2

• (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (2) For the purposes of the exercise of their general functions under section 1(3), the Scottish Ministers, so far as they do not otherwise have power to do so, may—

• (a) make grants;

• (b) make loans;

• (c) acquire, hold and dispose of securities;

• (d) guarantee obligations (arising out of loans or otherwise) incurred by other persons, or grant indemnities;

• (e) provide or assist in the provision of advisory or other services or facilities for any person;

• (f) acquire land by agreement or gift;

• (g) acquire land (including servitudes or other rights in or over land by the creation of new rights) compulsorily;

• (h) hold and manage land and dispose of, or otherwise deal with, land held by them;

• (j) acquire and dispose of plant, machinery, equipment and other property;

• (k) develop land or carry out works on land, and maintain or assist in the maintenance of any such works;

• (l) make land, plant, machinery, equipment and other property available for use by other persons;

• (m) appoint other persons to act as their agents;

• (n) act as agents for other persons;

• (o) form companies under the Companies Act 2006;

• (p) form partnerships with other persons;

• (q) promote, provide or assist in the provision of, training in matters relating to housing;

• (r) carry out, commission or assist in the provision of, research and development;

• (s) promote, or assist in the promotion of, publicity relating to their general functions under section 1(3) and to matters relating to housing;

• (t) make such charge as they think fit for any of their services;

• (u) accept any gift or grant made to them for the purposes of any of their general functions under section 1(3) and, subject to the terms of the gift or grant and to the provisions of this Act, apply it for those purposes;

• (v) turn their resources to account so far as they are not required for the exercise of any of their general functions under section 1(3).

• (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (3A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (10) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (11) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Dissolution of SSHA and transfer of its property, rights, liabilities and obligations to Scottish Homes

3

Regulation of housing associations in Scotland and transfer to Scottish Homes of certain property, rights, liabilities and obligations of Housing Corporation

4

Finance and administration

Determination of financial duties of Scottish Homes

5

Government grants to Scottish Homes

6

Borrowing by and government loans to Scottish Homes

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Guarantees

8

Limit on borrowing etc

9

Miscellaneous financial directions

10

Accounts, annual report of Scottish Homes, etc

11

Part II — Rented Accommodation

Assured tenancies

Assured tenancies

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• (1) A tenancy under which a house is let as a separate dwelling is for the purposes of this Act an assured tenancy if and so long as—

• (a) the tenant or, as the case may be, at least one of the joint tenants is an individual; and

• (b) the tenant or, as the case may be, at least one of the joint tenants occupies the house as his only or principal home; and

• (c) the tenancy is not one which, by virtue of subsection (1A) or (2) below, cannot be an assured tenancy.

• (1A) A tenancy cannot be an assured tenancy if it is granted on or after 1 December 2017 .

• (2) If and so long as a tenancy falls within any paragraph of Schedule 4 to this Act, it cannot be an assured tenancy; and in that Schedule “tenancy” means a tenancy under which a house is let as a separate dwelling.

• (3) Subsection (1) is subject to section 46A.

Letting of a house together with other land

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• (1) If, under a tenancy, a house is let together with other land, then, for the purposes of this Act—

• (a) if and so long as the main purpose of the letting is the provision of a home for the tenant or, as the case may be, at least one of the joint tenants, the other land shall be treated as part of the house; and

• (b) if and so long as the main purpose of the letting is not as mentioned in paragraph (a) above, the tenancy shall be treated as not being one under which a house is let as a separate dwelling.

• (2) Nothing in subsection (1) above affects any question whether a tenancy is precluded from being an assured tenancy by virtue of any provision of Schedule 4 to this Act.

Tenant sharing accommodation with persons other than landlord

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• (1) Where a tenant has the exclusive occupation of any accommodation (in this section referred to as “the separate accommodation”) and—

• (a) the terms as between the tenant and his landlord on which he holds the separate accommodation include the use of other accommodation (“the shared accommodation”) in common with another person or other persons, not being or including the landlord, and

• (b) by reason only of the circumstances mentioned in paragraph (a) above, the separate accommodation would not, apart from this section, be a house let on an assured tenancy,

the separate accommodation shall be deemed to be a house let on an assured tenancy and the following provisions of this section shall have effect.

• (2) While the tenant is in possession of the separate accommodation, any term of the tenancy terminating or modifying, or providing for the termination or modification of, his right to the use of any of the shared accommodation which is living accommodation shall be of no effect.

• (3) Where the terms of the tenancy are such that, at any time during the tenancy, the persons in common with whom the tenant is entitled to the use of the shared accommodation could be varied or their number could be increased, nothing in subsection (2) above shall prevent those terms from having effect so far as they relate to any such variation or increase.

• (4) In this section “living accommodation” means accommodation of such a nature that the fact that it constitutes or is included in the shared accommodation is sufficient, apart from this section, to prevent the tenancy from constituting an assured tenancy of a house.

Certain sublettings not to exclude any part of sub-lessor’s premises from assured tenancy

15

• (1) Where the tenant of a house has sublet a part but not the whole of the house, then, as against his landlord or any superior landlord, no part of the house shall be treated as excluded from being a house let on an assured tenancy by reason only that the terms on which any person claiming under the tenant holds any part of the house include the use of accommodation in common with other persons.

• (2) Nothing in this section affects the rights against, and liabilities to, each other of the tenant and any person claiming under him, or of any two such persons.

Assured tenancies—security of tenure

Security of tenure

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• (1) After the termination of a contractual tenancy which was an assured tenancy the person who, immediately before that termination, was the tenant, so long as he retains possession of the house without being entitled to do so under a contractual tenancy shall, subject to section 12 above and sections 18 and 32 to 35 below—

• (a) continue to have the assured tenancy of the house; and

• (b) observe and be entitled to the benefits of all the terms and conditions of the original contract of tenancy so far as they are consistent with this Act but excluding any—

• (i) which makes provision for the termination of the tenancy by the landlord or the tenant; or

• (ii) which makes provision for an increase in rent (including provision whereby the rent for a particular period will or may be greater than that for an earlier period) otherwise than by an amount specified in or fixed by reference to factors specified in that contract or by a percentage there specified or fixed by reference to factors there specified, of an amount of rent payable under the tenancy,

and references in this Part of this Act to a “statutory assured tenancy” are references to an assured tenancy which a person is continuing to have by virtue of this subsection, subsection (1) of section 31 below, or section 3A of the Rent (Scotland) Act 1984.

• (1A) The factors referred to in subsection (1)(b)(ii) above must be—

• (a) factors which, once specified, are not wholly within the control of the landlord; and

• (b) such as will enable the tenant at all material times to ascertain without undue difficulty any amount or percentage falling to be fixed by reference to them.

• (2) A statutory assured tenancy cannot be brought to an end by the landlord except by obtaining an order of the First-tier Tribunal in accordance with the following provisions of this Part of this Act.

• (3) Notwithstanding anything in the terms and conditions of tenancy of a house being a statutory assured tenancy, a landlord who obtains an order for possession of the house as against the tenant shall not be required to give him any notice to quit.

Fixing of terms of statutory assured tenancy

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• (1) In this section, in relation to a statutory assured tenancy “the former tenancy” means the tenancy on the termination of which the statutory assured tenancy arises.

• (2) Not later than the first anniversary of the termination of the former tenancy, the landlord may serve on the tenant, or the tenant may serve on the landlord, a notice in the prescribed form—

• (a) proposing terms of the statutory assured tenancy other than as to the amount of the rent different from those which have effect by virtue of section 16(1)(b) above; and

• (b) proposing, if appropriate, an adjustment of the rent to take account of the proposed terms.

• (3) Where a notice has been served under subsection (2) above—

• (a) within the period of three months beginning on the date on which the notice was served on him, the landlord or the tenant, as the case may be, may refer the notice to the First-tier Tribunal under subsection (4) below in the prescribed form; and

• (b) if the notice is not so referred, then, with effect from such date, not falling within the period of three months referred to in paragraph (a) above, as may be specified in the notice, the terms proposed in the notice shall become terms of the tenancy in substitution for any other terms dealing with the same subject matter and the amount of the rent shall be varied in accordance with any adjustment so proposed.

• (4) Where a notice under subsection (2) above is referred to the First-tier Tribunal, the First-tier Tribunal shall consider the terms proposed in the notice and shall determine whether those terms, or some other terms (dealing with the same subject matter as the proposed terms), are such as, in the First-tier Tribunal’s opinion, might reasonably be expected to be found in a contractual assured tenancy of the house concerned, being a tenancy—

• (a) which begins at the termination of the former tenancy; and

• (b) which is granted by a willing landlord on terms which, except in so far as they relate to the subject matter of the proposed terms, are those of the statutory assured tenancy at the time of the First-tier Tribunal’s consideration.

• (5) Whether or not a notice under subsection (2) above proposes an adjustment of the amount of the rent under the statutory assured tenancy, where the First-tier Tribunal determines any terms under subsection (4) above, it shall, if it considers it appropriate, specify such an adjustment to take account of the terms so determined.

• (6) In making a determination under subsection (4) above, or specifying an adjustment of an amount of rent under subsection (5) above, there shall be disregarded any effect on the terms or the amount of the rent attributable to the granting of a tenancy to a sitting tenant.

• (7) Where a notice under subsection (2) above is referred to the First-tier Tribunal, then, unless the landlord and the tenant otherwise agree, with effect from such date as the First-tier Tribunal may direct—

• (a) the terms determined by the First-tier Tribunal shall become terms of the statutory assured tenancy in substitution for any other terms dealing with the same subject matter; and

• (b) the amount of the rent under the statutory assured tenancy shall be altered to accord with any adjustment specified by the First-tier Tribunal,

but for the purposes of paragraph (b) above, the First-tier Tribunal shall not direct a date earlier than the date on which the notice in question was referred to them.

• (8) Nothing in this section requires the First-tier Tribunal to continue with a determination under subsection (4) above if the tenancy has been brought to an end by order of the First-tier Tribunal under this Part of this Act or if the landlord and tenant give notice in writing that they no longer require such a determination.

Orders for possession

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• (1) The First-tier Tribunal shall not make an order for possession of a house let on an assured tenancy except on one or more of the grounds set out in Schedule 5 to this Act.

• (2) The following provisions of this section have effect, subject to section 19 below, in relation to proceedings for the recovery of possession of a house let on an assured tenancy.

• (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (3A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (4) If the First-tier Tribunal is satisfied that any of the grounds in Part I or II of Schedule 5 to this Act is established, the Tribunal shall not make an order for possession unless the Tribunal considers it reasonable to do so.

• (4A) In considering for the purposes of subsection (4) above whether it is reasonable to make an order for possession on Ground 11 or 12 in Part II of Schedule 5 to this Act, the First-tier Tribunal shall have regard, in particular, to—

• (a) the extent to which any delay or failure to pay rent taken into account by the Tribunal in determining that the Ground is established is or was a consequence of a delay or failure in the payment of relevant housing benefit or relevant universal credit , and

• (b) the extent to which the landlord has complied with the pre-action protocol specified by the Scottish Ministers in regulations.

• (5) Part III of Schedule 5 to this Act shall have effect for supplementing Ground 9 in that Schedule and Part IV of that Schedule shall have effect in relation to notices given as mentioned in Grounds 1 to 5 of that Schedule.

• (6) The First-tier Tribunal shall not make an order for possession of a house which is for the time being let on an assured tenancy, not being a statutory assured tenancy, unless—

• (a) the ground for possession is Ground 2 ... in Part I of Schedule 5 to this Act or any of the grounds in Part II of that Schedule, other than Ground 9 ... Ground 10 , Ground 15 or Ground 17; and

• (b) the terms of the tenancy make provision for it to be brought to an end on the ground in question.

• (6A) Nothing in subsection (6) above affects the First-tier Tribunal 's power to make an order for possession of a house which is for the time being let on an assured tenancy, not being a statutory assured tenancy, where the ground for possession is Ground 15 in Part II of Schedule 5 to this Act.

• (7) Subject to the preceding provisions of this section, the First-tier Tribunal may make an order for possession of a house on grounds relating to a contractual tenancy which has been terminated; and where an order is made in such circumstances, any statutory assured tenancy which has arisen on that termination shall, without any notice, end on the day on which the order takes effect.

• (8) In subsection (4A) above—

• (a) “relevant housing benefit” means—

• (i) any rent allowance or rent rebate to which the tenant was entitled in respect of the rent under the Housing Benefit (General) Regulations 1987 (S.I. 1987/1971); or

• (ii) any payment on account of any such entitlement awarded under Regulation 91 of those Regulations;