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Housing (Scotland) Act 1988 (c. 43)

(The document as of February, 2008)

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Housing (Scotland) Act 1988

1988 CHAPTER 43

ARRANGEMENT OF SECTIONS

Content
  1. Part I

    Scottish Homes

    1. Establishment and functions

      1. 1. Scottish Homes.

      2. 2. General functions of Scottish Homes.

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

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

    2. Finance and administration

      1. 5. Determination of financial duties of Scottish Homes.

      2. 6. Government grants to Scottish Homes.

      3. 7. Borrowing by and government loans to Scottish Homes.

      4. 8. Guarantees.

      5. 9. Limit on borrowing etc.

      6. 10. Miscellaneous financial directions.

      7. 11. Accounts, annual report of Scottish Homes, etc.

  2. Part II

    Rented Accommodation

    1. Assured tenancies

      1. 12. Assured tenancies.

      2. 13. Letting of a house together with other land.

      3. 14. Tenant sharing accommodation with persons other than landlord.

      4. 15. Certain sublettings not to exclude any part of sublessor's premises from assured tenancy.

    2. Assured tenancies--security of tenure

      1. 16. Security of tenure.

      2. 17. Fixing of terms of statutory assured tenancy.

      3. 18. Orders for possession.

      4. 19. Notice of proceedings for possession.

      5. 20. Extended discretion of court in possession claims.

      6. 21. Special provisions applicable to shared accommodation.

      7. 22. Payment of removal expenses in certain cases.

    3. Assured tenancies--rents and other terms

      1. 23. Limited prohibition on assignation etc. without consent.

      2. 24. Increases of rent under assured tenancies.

      3. 25. Determination of rent by rent assessment committee.

      4. 26. Access for repairs.

    4. Assured tenancies--miscellaneous

      1. 27. Prohibition of premiums etc. on assured tenancies.

      2. 28. Effect of termination of tenancy on sub-tenancies which are or are under assured tenancies.

      3. 29. Restriction on diligence.

      4. 30. Duty of landlord under assured tenancy to provide written tenancy document and weekly rent book.

      5. 31. Right of succession of spouse.

    5. Short assured tenancies

      1. 32. Short assured tenancies.

      2. 33. Recovery of possession on termination of a short assured tenancy.

      3. 34. Reference of rents under short assured tenancies to rent assessment committee.

      4. 35. Disapplication of rent assessment committee's functions under section 34.

    6. Protection from eviction

      1. 36. Damages for unlawful eviction.

      2. 37. The measure of damages.

      3. 38. Further offence of harassment.

      4. 39< "Part VII" contracts limited to transitional cases.">44. New "Part VII" contracts limited to transitional cases.

      5. 45. Transfer of existing tenancies.

      6. 46. Statutory tenants: succession.

    7. General Provisions

      1. 47. Rent (Scotland) Act 1984 not to apply to tenancies subject to shared ownership agreements.

      2. 48. Rent assessment committees: procedure and information powers.

      3. 49. Information as to determination of rents.

      4. 50. Powers of local authorities for the purposes of giving information.

      5. 51. Application to Crown.

      6. 52. Saving for common law as to effect of notice of termination upon tacit relocation.

      7. 53. Orders and regulations.

      8. 54. Notice under Part II.

      9. 55. Interpretation of Part II.

  3. Part III

    Change of Landlord: Secure Tenants

    1. 56. Right conferred by Part III.

    2. 57. Persons by whom right may be exercised.

    3. 58. Application to exercise rights conferred by this Part and offer to sell.

    4. 59. Variation of conditions.

    5. 60. Notice of acceptance.

    6. 61. Refusal of applications.

    7. 62. Reference to Lands Tribunal.

    8. 63. Consent for subsequent disposals.

    9. 64. Extension etc. of relevant periods.

  4. Part IV

    1. Miscellaneous and General

      1. 65. "Cost floor" limit on discount on price of house purchased by secure tenant.

      2. 66. Schemes for payments to assist local authority tenants to obtain other accommodation.

      3. 67. Abolition and capitalisation of certain subsidies and contributions.

      4. 68. Abolition of local authority's power to refer Part VII contracts to rent assessment committees.

      5. 69. Exclusion of SSHA, development corporations and co-operative housing associations from rent limitation under Part VI of Rent (Scotland) Act 1984.

      6. 70. Rent officers: additional functions relating to housing benefit etc.

      7. 71. Power of development corporations to dispose of housing land.

      8. 72. Amendments to the Housing (Scotland) Act 1987 and other enactments and repeals.

      9. 73. Finance.

      10. 74. Short title, commencement and extent.

    1. Schedule 1

      Scottish Homes.

    2. Schedule 2

      Amendments consequential on establishing of Scottish Homes and abolition of SSHA.

    3. Schedule 3

      Scottish Homes: amendments of Housing Associations Act 1985.

    4. Schedule 4

      Tenancies which cannot be assured tenancies.

    5. Schedule 5

      Grounds for possession of houses let on assured tenancies.

      1. Part I

        Grounds on which sheriff must order possession.

      2. Part II

        Grounds on which sheriff may order possession.

      3. Part III

        Suitable alternative accommodation.

      4. Part IV

        Notices relating to recovery of possession.

    6. Schedule 6

      Statutory or statutory assured tenants by succession.

      1. Part I

        New Schedules 1A and 1B to Rent (Scotland) Act 1984 (c. 58).

      2. Part II

        Statutory assured tenants by succession-- modification of enactments.

    7. Schedule 7

      Housing (Scotland) Act 1987-- amendments connected with consolidation.

    8. Schedule 8

      Housing (Scotland) Act 1987-- minor amendments.

    9. Schedule 9

      Consequential amendments.

    10. Schedule 10

      Repeals.

An Act to establish a body having functions relating to housing; and, as respects Scotland, to make further provision with respect to houses let on tenancies; to confer on that body and on persons approved for the purpose the right to acquire from public sector landlords certain houses occupied by secure tenants; to make new provision as to the limit on discount on the price of houses purchased by secure tenants; to provide for the making of local authority grants to assist local authority tenants to obtain accommodation otherwise than as such tenants; to abolish, and make interim provision for the capitalisation of, certain subsidies and contributions relating to housing; to make further provision about rent officers and the administration of housing benefit and rent allowance subsidy; to make provision for the disposal of housing land by development corporations; and for connected purposes.

[2nd November 1988]

Be it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:--



Part I Scottish Homes

Establishment and functions

1 Scottish Homes

(1) There shall be a body to be known as Scottish Homes.

(2) Schedule 1 to this Act shall have effect with respect to the constitution and proceedings of and other matters relating to Scottish Homes.

(3) Scottish Homes 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) providing, improving, repairing, maintaining and managing housing (whether solely or in conjunction with any other person or body);

(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 housing associations, maintaining a register of housing associations and exercising supervision and control over registered housing associations;

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

(g) such other general functions as are conferred upon Scottish Homes by or under this Act or any other enactment.

2 General functions of Scottish Homes

(1) Scottish Homes may do anything, whether in Scotland or elsewhere, which is calculated to facilitate or is incidental or conducive to the discharge of its general functions.

(2) Without prejudice to the generality of subsection (1) above and subject to subsection (3) below Scottish Homes 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 it;

(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 its agents;

(n) act as agents for other persons;

(o) form companies within the meaning of the [1985 c. 6.] Companies Act 1985;

(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 its general functions and powers and to matters relating to housing;

(t) make such charge as it thinks fit for any of its services;

(u) accept any gift or grant made to it for the purposes of any of its general functions and powers and, subject to the terms of the gift or grant and to the provisions of this Act, apply it for those purposes;

(v) turn its resources to account so far as they are not required for the exercise of any of its general functions and powers.

(3) The powers of Scottish Homes mentioned--

(a) in subsection (2)(a) to (d), (m) and (o) above may be exercised only with the approval of the Secretary of State given with the consent of the Treasury or in accordance with a general authority given by him with such consent;

(b) in subsection (2)(e) to (l) above may be exercised only in accordance with arrangements made with the Secretary of State.

(4) For the purpose of the acquisition of land by Scottish Homes by agreement--

(a) the Lands Clauses Acts (except so much of them as relates to the acquisition of land otherwise than by agreement, the provisions relating to access to the special Act and sections 120 to 125 of the [1845 c. 19.] Lands Clauses Consolidation (Scotland) Act 1845); and

(b) sections 6 and 70 to 78 of the [1845 c. 33.] Railway Clauses Consolidation (Scotland) Act 1845 (as originally enacted and not as amended by section 15 of the [1923 c. 20.] Mines (Working Facilities and Support) Act 1923),

shall be incorporated with this section and in construing those Acts for the purposes of this section this section shall be deemed to be the special Act and Scottish Homes to be the promoters of the undertaking or company, as the case may require.

(5) For the purpose of the acquisition of land by Scottish Homes compulsorily the [1947 c. 42.] Acquisition of Land (Authorisation Procedure) (Scotland) Act 1947 shall apply as if Scottish Homes were a local authority and as if this section were contained in an Act in force immediately before the commencement of that Act.

(6) Scottish Homes shall not, except with the consent of the Secretary of State, dispose of any land intended for use for commercial, recreational or other non-domestic purposes for less than the best consideration which can reasonably be obtained.

(7) For the purposes of section 278 of the [1972 c. 52.] Town and Country Planning (Scotland) Act 1972 (general vesting declarations) Scottish Homes shall be deemed to be a public authority to which that section applies.

(8) After section 239 of the [1987 c. 26.] Housing (Scotland) Act 1987 there shall be added the following section--

" 239A Power of Secretary of State to give directions to prevent duplications of grant

(1) The Secretary of State may, so as to prevent the duplication of the making of grants under this Part in respect of the same works, give directions to--

(a) a local authority;

(b) local authorities generally; and

(c) Scottish Homesas to the circumstances in which they, or any of them, may or may not exercise their powers under this Part.

(2) It shall be the duty of Scottish Homes and of any local authority to whom directions have been given to comply with such directions. " .

(9) After section 256 of the [1987 c. 26.] Housing (Scotland) Act 1987 there shall be added the following section--

" 256A Application of this Part to Scottish Homes

This Part (except sections 253 to 255) shall apply to Scottish Homes as it applies to a local authority. " .

(10) The Secretary of State may give Scottish Homes directions of a general or specific character as to the exercise of its general functions and powers and it shall be the duty of Scottish Homes to comply with any such directions.

(11) Section 71 of the [1976 c. 74.] Race Relations Act 1976 (local authorities: general statutory duty) shall apply to Scottish Homes as it applies to a local authority.

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

(1) The Scottish Special Housing Association shall be dissolved on such date as the Secretary of State may by order specify (the "specified date") and all heritable or moveable property wherever situated held by the Scottish Special Housing Association immediately before the specified date shall, on that date, be transferred to and vest in Scottish Homes and all rights, liabilities and obligations of the Scottish Special Housing Association to which it was entitled or subject immediately before the specified date shall, on that date, be transferred to Scottish Homes.

(2) For sub-paragraph (iv) of section 61(2)(a) of the Housing (Scotland) Act 1987 (secure tenant's right to purchase from SSHA) there shall be substituted the following --

" (iv) Scottish Homes " .

(3) Schedule 2 to this Act has effect for the purpose of making other amendments to the enactments specified in that Schedule consequential upon the abolition of the Scottish Special Housing Association and the establishment of Scottish Homes and for connected purposes.

(4) An order under this section shall be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.

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

(1) Every housing association to which this subsection applies, that is to say, every housing association which immediately before the specified date--

(a) was registered in the register maintained under section 3(1) of the [1985 c. 69.] Housing Associations Act 1985 by the Housing Corporation; and

(b) was a society registered under the [1965 c. 12.] Industrial and Provident Societies Act 1965, and had its registered office for the purposes of that Act in Scotland,

shall, on the specified date, cease to be registered in the register so maintained by the Housing Corporation and shall, as from that date, be registered by virtue of this subsection in the register maintained under section 3(1) of the Housing Associations Act 1985 by Scottish Homes.

(2) The Secretary of State shall, not later than one month before the specified date, notify every housing association which appears to him to be one to which, on that date, subsection (1) above will apply of that fact and of the effect of that subsection.

(3) As soon as may be after the specified date, Scottish Homes shall notify the assistant registrar of friendly societies for Scotland of every registration which has taken place by virtue of subsection (1) above.

(4) The provisions of Part I of the Housing Associations Act 1985 (regulation of housing associations) shall have effect subject to the amendments of that Part of that Act set out in Schedule 3 to this Act.

(5) All heritable or moveable property held in Scotland by the Housing Corporation immediately before the specified date shall, on that date, be transferred to and vest in Scottish Homes and all rights, liabilities and obligations relating to or arising in connection with--

(a) the housing associations to which subsection (1) above applies, and

(b) land in Scotland held by unregistered housing associations,

being rights, liabilities and obligations to which the Housing Corporation was entitled or subject immediately before the specified date shall, on that date, be transferred to Scottish Homes.

(6) Any question as to whether any property, right, liability or obligation has been transferred to Scottish Homes under subsection (5) above shall be determined by the Secretary of State.

(7) In this section, "specified date" has the same meaning as in section 3 above.



Finance and administration

5 Determination of financial duties of Scottish Homes

(1) The Secretary of State may, with the approval of the Treasury, determine the financial duties of Scottish Homes, and different determinations may be made in relation to different general functions, powers and activities of Scottish Homes.

(2) The Secretary of State shall give Scottish Homes notice of every determination, and a determination may--

(a) relate to a period beginning before the date on which it is made;

(b) contain incidental or supplemental provisions; and

(c) be varied by a subsequent determination.

6 Government grants to Scottish Homes

(1) The Secretary of State may, with the consent of the Treasury, make such grants to Scottish Homes as appear to him to be required to enable Scottish Homes to meet the expenses it incurs in the exercise of its general functions and powers.

(2) A grant under subsection (1) above may be subject to such conditions as the Secretary of State may determine.

7 Borrowing by and government loans to Scottish Homes

(1) For the purpose of the exercise of any of its general functions or powers Scottish Homes may borrow money from the Secretary of State and may, with the consent of the Secretary of State given with the approval of the Treasury, borrow money, whether in sterling or otherwise, from any other person or body, whether in the United Kingdom or elsewhere.

(2) Scottish Homes may borrow money from any of its wholly owned subsidiaries without obtaining the consent of the Secretary of State.

(3) It shall be the duty of Scottish Homes to secure that none of its wholly owned subsidiaries borrows money otherwise than from Scottish Homes or from another wholly owned subsidiary of Scottish Homes, except with the consent of the Secretary of State and the approval of the Treasury.

(4) The Secretary of State may lend to Scottish Homes any sums which Scottish Homes has power to borrow from him under subsection (1) above, for such purposes as the Secretary of State may specify and the Treasury may issue to the Secretary of State out of the National Loans Fund any sums necessary to enable the Secretary of State to make loans in pursuance of this subsection.

(5) Any loans made in pursuance of subsection (4) above shall be repaid to the Secretary of State at such times and by such methods, and interest on the loans shall be paid to him at such times and at such rates, as he may from time to time direct; and all sums received by the Secretary of State in pursuance of this subsection shall be paid into the National Loans Fund.

(6) The Secretary of State shall prepare in respect of each financial year an account of the sums issued to him in pursuance of subsection (4) above and the sums received by him in pursuance of subsection (5) above and of the disposal by him of those sums, and shall send the account to the Comptroller and Auditor General before the end of the month of November next following the end of that year; and the Comptroller and Auditor General shall examine, certify and report on the account and lay copies of it and of his report before each House of Parliament.

(7) The Secretary of State shall not make a loan or give a direction in pursuance of this section except with the approval of the Treasury; and the form of the account prepared in pursuance of subsection (6) above and the manner of preparing it shall be such as the Treasury may direct.

(8) In this section and in sections 8, 10 and 11 below, "financial year" means the period beginning with the commencement of this section and ending with 31st March of the calendar year next following such commencement and each subsequent period of 12 months ending with 31st March.

8 Guarantees

(1) The Treasury may guarantee, in such manner and on such conditions as they think fit, the repayment of the principal of and the payment of interest on any sums which Scottish Homes borrows from a person other than the Secretary of State.

(2) Immediately after a guarantee is given under this section, the Treasury shall lay a statement of the guarantee before each House of Parliament; and where any sum is issued for fulfilling a guarantee so given, the Treasury shall lay before each House of Parliament a statement relating to that sum, as soon as possible after the end of each financial year, beginning with that in which the sum is issued and ending with that in which all liability in respect of the principal of the sum and in respect of interest on it is finally discharged.

(3) Any sums required by the Treasury for fulfilling a guarantee under this section shall be charged on and issued out of the Consolidated Fund.

(4) If any sums are issued in fulfilment of a guarantee given under this section, Scottish Homes shall make to the Treasury, at such time and in such manner as the Treasury from time to time direct, payments of such amounts as the Treasury so direct in or towards repayment of the sums so issued and payments of interest, at such rate as the Treasury so direct, on what is outstanding for the time being in respect of sums so issued.

(5) Any sums received by the Treasury in pursuance of subsection (4) above shall be paid into the Consolidated Fund.

9 Limit on borrowing etc

(1) The aggregate amount outstanding by way of principal of--

(a) money borrowed by Scottish Homes under section 7(1) above;

(b) money borrowed by wholly owned subsidiaries of Scottish Homes with the consent of the Secretary of State and approval of the Treasury under section 7(3) above;

(c) money borrowed by the Scottish Special Housing Association or the Housing Corporation the repayment of which is a liability or obligation transferred to Scottish Homes under section 3(1) or 4(5) above;

(d) sums issued by the Treasury in fulfilment of guarantees under section 8 above,

shall not exceed £1,000 million or such greater sum not exceeding £1,500 million as the Secretary of State may specify by order made with the consent of the Treasury.

(2) An order under subsection (1) above shall be made by statutory instrument and no such order shall be made unless a draft of it has been laid before and approved by the House of Commons.

(3) In ascertaining the limit imposed by subsection (1) above, interest payable on a loan made by the Secretary of State to Scottish Homes which, with the approval of the Treasury, is deferred and treated as part of the loan shall, so far as outstanding, be treated as outstanding by way of principal.

10 Miscellaneous financial directions

(1) If for a financial year the revenues of Scottish Homes exceed the total sums properly chargeable to revenue account, it shall apply the excess in such manner as the Secretary of State may, after consultation with Scottish Homes direct; and the Secretary of State may direct that the whole or part of the excess be paid to him.

(2) The Secretary of State may give directions to Scottish Homes as to matters relating to--

(a) the establishment or management of reserves;

(b) the carrying of sums to the credit of reserves; or

(c) the application of reserves for the purposes of the functions of Scottish Homes.

(3) The Secretary of State may direct Scottish Homes to pay to him the whole or part of any sums for the time being standing to the credit of its reserves or being of a capital nature and not required for the exercise of its functions.

(4) The Secretary of State may act under this section only with the approval of the Treasury.

(5) It shall be the duty of Scottish Homes to comply with directions under this section.

11 Accounts, annual report of Scottish Homes, etc

(1) Scottish Homes shall keep proper accounts and other records in relation to the accounts and shall prepare in respect of each of its financial years a statement of account in such form as the Secretary of State may, with the approval of the Treasury, determine.

(2) The statement of account prepared by Scottish Homes for each financial year shall be submitted to the Secretary of State at such time as he may direct.

(3) The Secretary of State shall, on or before the end of the month of August in any year, transmit to the Comptroller and Auditor General the statement of account prepared by Scottish Homes under this section for the financial year last ended.

(4) The Comptroller and Auditor General shall examine and certify the statement of account transmitted to him under this section and lay before Parliament copies of the statement of account together with his report thereon.

(5) Scottish Homes shall provide the Secretary of State with such information relating to its general functions, powers, activities and proposed activities as he may from time to time require, and for that purpose shall permit any person authorised in that behalf by the Secretary of State or the Comptroller and Auditor General to inspect and make copies of its accounts, books, documents or papers, and shall afford to that person such explanation thereof as he may reasonably require.

(6) It shall be the duty of Scottish Homes to make to the Secretary of State, as soon as possible after the end of each financial year, a report dealing with the activities of Scottish Homes during that year.

(7) It shall be the duty of the Secretary of State to lay before each House of Parliament a copy of each report received by him under subsection (6) above.



Part II Rented Accommodation

Assured tenancies

12 Assured tenancies

(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 (2) below, cannot be an assured tenancy.

(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.

13 Letting of a house together with other land

(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.

14 Tenant sharing accommodation with persons other than landlord

(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.

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

(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

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16 Security of tenure

(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 that contract or by a percentage 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 [1984 c. 58.] Rent (Scotland) Act 1984.

(2) A statutory assured tenancy cannot be brought to an end by the landlord except by obtaining an order of the sheriff 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.

17 Fixing of terms of statutory assured tenancy

(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 a rent assessment committee under subsection (4) below in the prescibed 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 a rent assessment committee, the committee 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 committee'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 committee'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 a rent assessment committee determine any terms under subsection (4) above, they shall, if they consider 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 a rent assessment committee, then, unless the landlord and the tenant otherwise agree, with effect from such date as the committee may direct--

(a) the terms determined by the committee 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 committee,

but for the purposes of paragraph (b) above, the committee 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 a rent assessment committee to continue with a determination under subsection (4) above if the tenancy has been brought to an end by order of the sheriff under this Part of this Act or if the landlord and tenant give notice in writing that they no longer require such a determination.

18 Orders for possession

(1) The sheriff 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) If the sheriff is satisfied that any of the grounds in Part I of Schedule 5 to this Act is established then, subject to subsection (6) below, he shall make an order for possession.

(4) If the sheriff is satisfied that any of the grounds in Part II of Schedule 5 to this Act is established, he shall not make an order for possession unless he considers it reasonable to do so.

(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 sheriff 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 or Ground 8 in Part I of Schedule 5 to this Act or any of the grounds in Part II of that Schedule, other than Ground 9 or Ground 10 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.

(7) Subject to the preceding provisions of this section, the sheriff 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.

19 Notice of proceedings for possession

(1) The sheriff shall not entertain proceedings for possession of a house let on an assured tenancy unless--

(a) the landlord (or, where there are joint landlords, any of them) has served on the tenant a notice in accordance with this section; or

(b) he considers it reasonable to dispense with the requirement of such a notice.

(2) The sheriff shall not make an order for possession on any of the grounds in Schedule 5 to this Act unless that ground is specified in the notice under this section; but the grounds specified in such a notice may be altered or added to with the leave of the sheriff.

(3) A notice under this section is one informing the tenant that--

(a) the landlord intends to raise proceedings for possession of the house on one or more of the grounds specified in the notice; and

(b) those proceedings will not be raised earlier than the expiry of the period of two weeks or two months (whichever is appropriate under subsection (4) below) from the date of service of the notice.

(4) The minimum period to be specified in a notice as mentioned in subsection (3)(b) above is--

(a) two months if the notice specifies any of Grounds 1, 2, 5, 6, 7, 9 and 17 in Schedule 5 to this Act (whether with or without other grounds); and

(b) in any other case, two weeks.

(5) The sheriff may not exercise the power conferred by subsection (1)(b) above if the landlord seeks to recover possession on Ground 8 in Schedule 5 to this Act.

(6) Where a notice under this section relating to a contractual tenancy--

(a) is served during the tenancy; or

(b) is served after the tenancy has been terminated but relates(in whole or in part) to events occurring during the tenancy,

the notice shall have effect notwithstanding that the tenant becomes or has become tenant under a statutory assured tenancy arising on the termination of the contractual tenancy.

(7) A notice under this section shall cease to have effect 6 months after the date on or after which the proceedings for possession to which it relates could have been raised.

20 Extended discretion of court in possession claims

Pages: P.1 | P.2 | P.3 | P.4 | P.5 | P.6 | P.7

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