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Publication - Guidance

Model revised Scottish secure tenancy agreement

Published: 19 Sep 2002
Part of:
Housing
ISBN:

An updated version of the model Scottish secure tenancy agreement.

55 page PDF

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55 page PDF

331.9kB

Contents
Model revised Scottish secure tenancy agreement
Page 17

55 page PDF

331.9kB

Model Scottish Secure Tenancy Agreement

Note 4.1 This reflects the statutory code contained in s 32 (assignation, sub-letting etc.), s 33 (exchange of houses) and s11(4) (assumption of joint tenant). In all cases, the consent of the landlord is to be obtained. Note that the procedure for assumption of joint tenants appears to be quite different from that applicable to other forms of variation of the tenancy (unless a court were to take the view that the assumption of a joint tenant amounts to giving up of possession of the house, within the meaning of section 32(1), in which case, the same procedures and appeal routes would apply)


Note 4.2 This reflects the statutory code contained in s 32 (assignation, sub-letting etc.), s 33 (exchange of houses) and s11(5) (assumption of joint tenant). The examples of grounds for refusal are taken from the legislation and are not exhaustive. Note that s32(4) makes special provision for housing co-ops in that the assignee etc. must be a member of the co-op when the assignation etc. takes effect. Paragraph 10.3 provides more on the procedure, deemed grant of consent and the rights of appeal to the sheriff .


Note 4.3 This reflects the new statutory provisions introduced by section 33. The examples of grounds for refusal are taken from the legislation and are not exhaustive. If the Scottish secure tenant proposes to exchange with a short Scottish secure tenant, it is thought that the landlord has three choices. First, it may decide that in the circumstances it is reasonable to refuse permission. Second, it may decide to grant permission but to serve a notice under s34(4) (assuming that a Schedule 6 ground exists), creating for the incoming tenant a short secure tenancy as of the date of exchange, so that the incoming tenant does not thereby acquire a Scottish secure tenancy (which would normally be the effect of s33(6)) when s/he had previously held a short Scottish secure tenancy. Third, it may decide to grant permission and to grant the incoming tenant a Scottish secure tenancy despite the fact that that tenant had previously held only a short Scottish secure tenancy (section 34 does not oblige a landlord to grant a short Scottish secure tenancy even where a Schedule 6 ground exists). Of course, the other landlord may have reasons for refusing the exchange in which case, the exchange would not take place in any event (subject to appeal). Note that s33(4) makes special provision for housing co-ops in that the exchanger must be a member of the co-op when the exchange takes effect Paragraph 10.3 provides more on the procedure, deemed grant of consent and the rights of appeal to the sheriff.

Note 4.4 The Matrimonial Homes (Family Protection)(Scotland) Act 1981 in effect prohibits 'dealings' with the matrimonial home which affect the rights of occupation of the 'non-entitled spouse' without the consent of that non-entitled spouse. A 'dealing' includes the assignation, exchange etc. of the matrimonial home. Opposite-sex co-habitees do not have the same automatic occupancy rights in relation to the matrimonial home. However, such a co-habitee can seek a declaration from the sheriff court of occupancy rights and while such a declaration is in force, dealings will require the consent of the co-habitee. The 1981 gives no rights at all to same sex co-habitees or others residing with the tenant. Their consent is not required. Hence, the term "co-habitee" is not used in this paragraph. See section 20 for the procedure for dealing with abandonment of the tenancy by a joint tenant.


General Note to Part 5

This Part reflects the current common law and statutory position in relation to the crucial area of repairs and related matters. The 2001 Act deals with repairs, improvements and compensation at sections 27 to 31 and Sch 4 .However, the majority of the law dealing with repairs is found elsewhere. The following are some of the principal sources of the law, and commentaries on the law, in relation to repairs:
Housing (Scotland) Act 1987 (especially Schedule 10 (which applies to the vast majority of rented houses); Rankine (1916), Law of Leases in Scotland; Stair Memorial Encyclopaedia, Vol. 13; Paton and Cameron (1967), Landlord and Tenant; Robson (1993), Residential Tenancies; Brown and McIntosh (1987), Dampness and The Law, Shelter; Knafler (1997), Remedies for Disrepair, Sweet and Maxwell; O'Carroll and McIntosh (1993), Solicitors Dampness Action Pack, Legal Services Agency contains a useful summary of the law and relevant cases. It is important to note that the statutory code relating to repairs contained in Schedule 10 to the 1987 Act cannot be contracted out of except by application to the sheriff. Any clause of a tenancy agreement which purports to exclude or restrict the implied repairs obligations is void (Sch 10(5)).


Note 5.1: The common law duty of repair ( see paragraphs 5.2 and 5.3 and notes thereto) is to provide and maintain the house in habitable (or tenantable) condition rather than to "repair" as such. Thus, works may be required to the house which may not ordinarily (or as a matter of law) be properly termed "repair" (e.g. - addition of insulation : Gunn -v- Glasgow District Council 1992 SCLR 1018 and see Neilson v Scottish Homes 1998 HousLR 56). In this, Scots law is quite different from English law where there is no equivalent common law obligation (see e.g. Quick -v- Taff Ely Borough Council [1985] 3 All ER 321). It has been suggested that the statutory formulation ("in all respects reasonably fit for human habitation") does no more than reflect the common law obligation ( Murray v Edinburgh District Council 1981 SLT 253 and c.f. Summers v Salford Corporation 1943 AC 243 (HL)). Both formulations are included here in case there is a difference. It should be noted that much, if not most, of the caselaw on repairs was decided on the common law duties.


Note 5.2: The duty of the landlord at common law is to provide the house at the beginning of the tenancy, in a habitable condition (Rankine, p240; Lamb -v- Glasgow District Council 1978 SLT (Notes) 64; Docherty -v- Inverclyde District Council 1995 SCLR (Notes) 965; Neilson v Scottish Homes 1998 HousLR 56) , wind and watertight against ordinary encroachment of the elements ( Wolfson -v- Forrester 1910 SC 675; Rankine p242), reasonably fit for the purposes for which it was let (Rankine p240), and in all respects reasonably fit for human habitation (1987 Act, Sch 10(1)). The new expression of statutory duties contained in Sch 4(1) of the 2001 Act effectively encapsulates these duties. The 1987 Act and 2001 Act duties are co-terminus. These duties entail an inspection at or immediately prior to the commencement of the tenancy (e.g. Lamb; Bell -v- SSHA 1987 SLT 320). That duty is now effectively expressed in Sch 4(2)(a) of the 2001 Act. The duty is one of warrandice, that is, a guarantee that the subjects are in such repair at the commencement (see Erskine, Institutes, II, 6, 39 and 43 and Rankine p241-2). The 2001 Act expresses this duty by the use of the word "must" rather than by reference to the term warrandice. Thus any necessary repairs must be carried out at or prior to the commencement of the lease. The 2001 Act expresses this effectively in sch 4(1) and (2). If the repairs are not done, then the landlord is in breach of its common law obligations (e.g. Brodie -v- McLachlan 1900 SLT 145) and now in breach of its statutory duties.. Repairs which are not required to bring the subjects to a tenantable etc. condition need not, at common law or in statute, be done at that time.


Note 5.3: General. Once the tenancy has begun, the landlord's duty is to undertake to keep the house in all respects reasonably fit for human habitation (Sch 10 (1)(2), 1987 Act, Summers -v- Salford Corporation [1943] AC 283 HL), wind and watertight ( Wolfson -v- Forrester 1910 SC 675) and in tenantable condition (Rankine, p240-2). This duty is recognised in the 2001 Act in Sch 4(1)(b). The duty is fulfilled by carrying out repair, or other work, within a reasonable time of becoming aware of the need for repair. (Rankine, p240, Paton and Cameron, p132, Shields -v- Dalziel (1887) 24 R 849, Gunn -v- NCB 1982 SLT 526, McGreal -v- Wake (1984) 128 SJ 116, Golden Casket (Greenock) -v- BRS (Pickfords) 1972 SLT 146). See now Sch 4(3)(a) of the 2001 Act. The reasonableness of that time will depend on all the circumstances including the seriousness of the disrepair (e.g. Scottish Heritable Security -v- Granger (1881) 8 R 459, Gunn -v- NCB supra, Bolan -v- Glasgow District Council (1984) SHLR 40 McGreal -v- Wake (1984) 128 SJ 116; Shields -v- Dalziel (1987) 24 R 849.) the effect on the tenant, the effect on the building, the complexity of the works, the ease with which it is possible to specify what needs to be done, the landlords own internal or published policy, policies of other, similar landlords, expert evidence (from, say, plumbers, architects, housing professionals) including possibly the existence of a planned modernisation programme. However, where the disrepair was present at the commencement of the tenancy, there is no such reasonable period of time since the landlord guarantees that the house is tenantable at the start of the tenancy: see Note 5.2.The final sentence is contractual and good practice. It is thought that the doctrine volenti non fit injuria (no liability to a person who has voluntarily accepted a risk) does not apply to housing disrepair cases, at least those based on contract ( Neilson v Scottish Homes 1998 HousLR 56) although continued residence may be relevant to the assessment of damages( Neilson, supra)


Note 5.4: The landlord is also under a duty at common law to inspect the common parts at the commencement of the tenancy to see that, at the very least, no foreseeable danger to the tenant or user of the common parts exists (which is not obvious) as the subjects must be reasonably fit for the purposes for which they were let and in this Agreement, the subjects include the common parts: Erskine II,6,43 (e.g. Mellon -v- Henderson 1913 SC 1207 , Johnstone -v- Glasgow District Council 1980 SLT 50 , Hughes Tutrix -v- Glasgow District Council 1982 SLT (Sh Ct) 70). This is now expressed in Sch 4(2)(a) of the 2001 Act. The third sentence reflects the provisions of Sch 10(3)(1B) to the 1987 Act.
The fourth sentence is optional. In lets of urban houses, the legal position regarding repair of fences etc., is not entirely clear. The Local Government Ombudsman receives many complaints about such matters. Fences, etc., are not included in the definition of common parts in paragraph 1.11. It is recommended that the optional clause is used or some other formulation which makes the position clear.
The fifth sentence is contractual. There is no common law duty implied into a tenancy agreement on a landlord to inspect the house during the course of the tenancy ( Hampton -v- Galloway and Sykes (1899) I F 501; Murray -v- Edinburgh District Council 1981 SLT 253) unless it has reason to suspect disrepair. But the position may be different in respect of those parts of the common parts which are solely under the control of the landlord (for example, a locked attic space to which only the landlord has the key) or to which the tenant can not reasonably obtain access (for example the roof). For cases on this point see Murphy -v- Hurley [1922] 1 AC 369 (repair of sea wall) cited in O'Brien -v- Robinson [1973] AC 912. Furthermore, it can be said with some force that where the landlord has built the entire building (as will often be the case with social landlords) and/or has provided installations therein (e.g. plumbing), it is thereby fixed with the knowledge of the probable life expectancy of such installations and the manufacturer's recommendations for maintenance and inspection. If inspection and maintenance is not carried out and damage occurs thereby, the landlord may be liable, in delict and under the Occupiers Liability Act 1960, for such losses. A related argument might be made out in respect of latent defects in construction (see Reid -v- Baird 1876 4 R 234 and Golden Casket (Greenock) Limited, supra). For these reasons, a duty to inspect at intervals is included. The length of the intervals will vary with the part to be inspected.


Note 5.5: This reflects Schedule 10(3)(3A) to the 1987 Act.


Note 5.6: The first sentence does two things. First, it reflects the common law relating to rising damp (Gunn -v- NCB 1982 SLT 526) and penetrating dampness (Wolfson -v- Forrester 1910 SC 675). Secondly, it makes clear that the general repairing obligations in 5.2 and 5.3 include obligations in respect of repair of all forms of dampness; which again reflects the common law.
The remainder of the paragraph summarises the difficult legal area of landlord's duties in respect of condensation dampness. It is beyond the scope of this note to summarise fully the legal position in this area. Readers are referred to the publications noted in the General Note to this Part and to Note 2.7. There is also a detailed summary of the law in this area in the commentary attached to the case report of Fyfe -v- Scottish Homes 1995 SCLR 209, a leading case in this area. The legal basis for this part of the paragraph can be summarised as follows.
The landlord's legal duties in respect of condensation dampness derive from the general common law and statutory duties referred to in 5.2 and 5.3 above. The second sentence is taken directly from the decision of Fyfe. The use of the word "reasonable" in relation to cost and temperature reflects the fact that it is impossible to determine precisely for all constructions of houses, in all conditions, what the figures will be. The matter is essentially a 'jury question' to be determined by the court, usually with the assistance of expert evidence from housing professionals such as architects or perhaps surveyors. Reasonable cost again is a jury question and derives from McCarthy -v- Glasgow District Council (1988) SCOLAG 121, (approved in Fyfe) where it was held that a house is not, in law, in habitable condition if it is "only by applying a large amount of heat and incurring inordinate heating bills" that it might be made habitable. However, the landlord's obligation is only to supply and maintain the house in such a condition for that class of tenants which is within the spectrum of lifestyles (including income) which the landlord could reasonably foresee (Quick -v- Taff Ely Borough Council [1986] QB 809 and Fyfe). Where the tenant has caused the condensation dampness because of his/her failure to act in a tenant like fashion, there is no liability on the landlord (Maguire -v- Glasgow District Council 1991 1 SHLR 1 ; Hoy-v- Glasgow District Council, both reported in Scottish Housing Law Reports, Vol 1 (published by Legal Services Agency Limited)). Where the landlord alleges that the tenant is responsible for the condensation dampness (for example by insufficient or inappropriate heating), it must be able to specify exactly what the tenant did (or failed to do), what s/he ought to have done, that the commission or omission caused the condensation dampness, and finally that had the tenant behaved correctly, then condensation dampness would not have occurred ( Guy -v- Strathkelvin District Council 1997 SCOLAG 30; 1997 HousLR 14).
The final sentence attempts to reflect the common law position as contained in the authoritative judgement in Gunn -v- Glasgow District Council 1992 SCLR (N) 1018 1997 HousLR 3 read together with the general common law position and other cases relating to this area including those noted above. (See Brown and McIntosh, O'Carroll and McIntosh, and Knaffler for detailed citations.)
Repairs require to be carried out within a reasonable time in terms of the common law: see Note 5.3.


Note 5.7: This paragraph reflects the terms of Sch 4(5) and (6) of the 2001 Act. Sch 10(1)(4) to the 1987 Act, which is in similar terms, was considered in Fyfe -v- Scottish Homes 1995 SCLR 209 (a condensation dampness case). It was held that a court, when assessing whether a house is habitable, may have regard to the regulations which were in force for the construction of new buildings at the commencement of the tenancy, even though the house may have been built before the regulations came into force. The court, of course, would be entitled to have regard to other matters, including the age of the building. Although the Fyfe case focused on those regulations which were in force at the commencement of the tenancy, it may be that, in relation to disrepair occurring during the tenancy, the relevant regulations would be those in force at the date of the disrepair. The effect of the section is not to impose a requirement on landlords to upgrade the house each time the regulations change : rather, the duty is to "have regard" to them in assessing their repair responsibilities. See also Guy v Strathkelvin Council 1997 HousLR 14 in which a similar argument was upheld.


Note 5.8 : The first three bullet points reflect Schedule 10(3) to the 1987 Act. The reference to the chimneys is not specified in the Act. Neither is there any Scottish or English caselaw on this point. However, they are installations for space heating. Accordingly responsibility for the cleaning of the chimneys is, subject to the tenant's general duty to act in a tenant like fashion, that of the landlord.
The third bullet point reflects Schedule 10(3)(2)(c) to the 1987 Act. The second sentence, which is derived from that part, itself refers to the common law position regarding fixtures attached to the house by the tenant. The basic common law position is that a tenant may remove fixtures attached by him/her for the purposes of his trade ( Syme -v- Harvey (1861) 24 D 20; Marshall -v- Tannoch Chemical Company (1886) 13 R 1042) and articles annexed for ornamentation or for the better enjoyment of the article itself ( Spyer -v- Phillipson [1931] 2 Ch 183). This is subject to the limitation that the articles must be capable of removal without material injury to the house and without being destroyed or losing their essential character or value (Amos and Ferrard: Fixtures (3 rd ed. 1883) pp 71,72). Plant and machinery are not prevented from being removable merely because they require to be dismantled providing they can be fitted together in the same form in another place ( Whitehead -v- Bennett (1852) 27 L.CH.474).
The fourth bullet point reflects the requirements of the Gas Safety (Installation and Use) Regulations 1999. Access for inspection is dealt with in paragraph 5.12.
The final bullet point is optional. It may be included where the definition of the common parts at paragraph 1.11 includes such equipment. The obligation does not derive from any statutory or common law source. However, it seems sensible and good practice to include such an obligation where tenants are dependent on communal facilities for such entertainment. It should be noted that the definition of repair can include the replacement of an obsolete thing by its modern equivalent: Morcom v Campbell-Johnston [1956] 1 QB 106. It may be that the advent of digital television services and the abolition of analogue services may raise important issues regarding repair and replacement. It may be that the definition of the common parts chosen in this Agreement does not include such equipment and that the provision of television signals is defined as a service. In that case, it is the agreement on services ( see paragraph 1.6) that determines the landlord's responsibilities for fixing defective equipment and replacement of obsolete equipment. Finally, the complex provisions of Reg 10 and Sch 1 of the Housing Benefit (General) Regulations 1987 in relation of communal telecommunications facilities should be noted. .


Note 5.9: Generally, landlords have responsibility for installations for the supply of water (Schedule 10(3)(1)(b)(i) to the 1987 Act). Detailed Water Supply Bye-Laws exist in most parts of the UK regulating all aspects of the supply of water. The Bye-Laws in each area are based on the Model Water Bye-Laws 1986. A full account of them together with Guidance is to found in the White and Mays (1989): Water Supply Bye-Laws Guide (2 nd ed.), Ellis Horwood Limited. Landlords thus are responsible for complying with the Bye-Laws, together with any other joint owners. Contravention of the Bye-Laws is a criminal offence (Bye-Law 99). Even if the Bye-Laws do not operate in a particular area, it is though desirable that those provisions contained here ought to form part of the Agreement.
The Bye-Laws are lengthy (101 in total). It is impracticable (and unnecessary) to refer to them all. However, it is thought desirable that the essence of some of them is specifically brought to the attention of the landlord and tenant. This is particularly so, given the experience of widespread financial loss (to both landlord and tenant) that occurred during freezing conditions in December 1995 and on other occasions.
The first bullet point reflects Bye-Law 30, the second 61 to 63, and the third 49. Bye-Law 100 provides that "it shall be a defence for a person charged with an offence under the Bye-Laws to show that he took all reasonable steps and exercised due diligence to avoid commission of that offence, or he had a reasonable excuse for his act or failure to act". This is reflected in the opening words to the paragraph and explains the final sentence. The Bye-Laws do not expressly impose an obligation to inspect the water supply intervals. However, it is suggested that unless the landlords had some system of inspection, it would be difficult to argue that it had taken "all reasonable steps" to avoid contravention of the Bye-Laws. Furthermore, the landlord guarantees, as a matter of law, that the house is let at the beginning of the tenancy in a habitable condition: this necessarily entails an inspection at the beginning including of the common parts (see Note 5.2).


Note 5.10: The first two sentences reflect the common law and statute: Sch 10(3)(2) of the 1987 Act. See Notes 2.2 and 2.7. The tenant is not liable at common law for damage caused by fair wear and tear (as opposed to neglect or negligence). The landlord is liable for damage by vandals and other third parties (Hastie -v- Edinburgh District Council 1981 SLT (Sh. Ct.) 61 and 92 and Schedule 10 (3)(2) of the 1987 Act, reversing the common law position). Naturally, the landlord is entitled to be satisfied that the damage was caused by a third party. In the case of vandals, a contractual obligation is imposed on the tenant to report the crime to the police and prove s/he has done so .


Note 5.11: This paragraph is optional. At common law, destruction by Act of God terminates the lease. However, a Scottish secure tenancy may only be brought to an end in one of the six ways provided for in s12(1) (see part 6 below); and none of the six include an Act of God. However, a landlord is under no duty to repair such damage in terms of statute (Sch 10 (3)(2), 1987 Act.) or to provide temporary accommodation. This paragraph gives the landlord discretion as to what to do after such damage. It is thought that social landlords would nevertheless accept responsibility in such circumstances voluntarily.


Note 5.12: The first two sentences broadly reflect Sch 4(4).
The third sentence is contractual: repair and inspection of wires, cables and pipes is covered by the first sentence. Laying of new wires etc. is likely not to be repairs; contractual authority is necessary.
The fourth sentence simply reflects the common law right of the landlord as owner of the subjects since the tenant has no exclusive possession of the common parts.
The fifth sentence is contractual. It is intended to deal with the situation, often encountered, where a tenant refuses, or otherwise fails, to give the landlord access for inspection, for example in connection with the landlords obligations under the Gas Safety (Installation and Use) Regulations 199 8. At present, the law is unclear as to what remedies the landlord has in such a situation. This paragraph clarifies the position contractually.
The sixth sentence is contractual and deals with the consequences of the landlord exercising its right to make forcible entry.
The seventh sentence reflects the common law concept of negotorium gestio (agency by necessity) as well as the right of any owner of property to take reasonable steps to safeguard his/her own property. Reinstatement of damage caused through forced entry and inspection and repair, where the tenant is not at fault, is dealt with in paragraph 5.14 .


Note 5.13: This is an expression of the common law duty (in delict, sometimes loosely referred to as the law of negligence) of reasonable care by the landlord to the tenant. The Scottish secure tenant has a duty (paragraph 2.2) to inform the landlord if s/he will be away for four weeks or more. If s/he does so, the landlord is arguably under a duty of care to that tenant's neighbours to consider the possible consequences arising from the weather or 3rd party actings - (c.f.. Maloco -v- Littlewoods Organisation 1986 SLT 272). Where the landlord does not know that the adjoining house is empty and could not otherwise reasonably have known that, no duty arises in this regard. This paragraph should not prevent usual delictual principles from applying in cases arising from, say, two weeks non-occupation where a party has suffered loss as a result of breach of duty of care by some other party. The bullet points are illustrations only of the typical sorts of work that may be required .


Note 5.14: The first sentence reflect s the common law (see Little -v- Glasgow District Council 1988 SCLR 482; McGreal -v- Wake (1984) 128 SJ 11 ; 13 HLR 109; Bradley -v- Chorley Borough Council (1985) 17 HLR 305). This duty is now found in Sch 4(3)(b).
The second sentence reflects the common law: the landlord is entitled to have repairs carried out to its house and if that requires the temporary decanting of the tenant: that right is implied(c.f McGreal above ). Normally, the landlord would offer suitable decanting facilities which are not to be a Scottish secure tenancy: see s11(9) and Sch 1(4). Note also that Sch 2(10) allows for eviction where repairs or other work requires to be done on the house in the absence of the tenant.
The law relating to the third sentence (expenses on decanting), which is optional, is not entirely clear in Scotland. In McGreal -v- Wake, it was held that such expenses are payable if the repairs were not done in a reasonable period of time (thus triggering a breach of contract) and it was not essential for the tenant to decant in order to allow the repairs to be done. Both criteria will be problematic, to say the least, to assess in any given situation . For reasons of pragmatics and good practice, the position is contractually clarified. See also Calabar Properties Limited -v- Stitcher [1984] 1 WLR 289 and Knaffler (1997), p 214.
The reason for the fourth sentence, which is optional, is as follows . At common law, where the subjects are unusable, wholly or partly, whether due to the landlord's actions or any other cause apart from the tenant him/herself, ( Muir -v- McIntyres (1887) 14 R 470) the tenant is entitled to a fair abatement (i.e. reduction) in rent: Renfrew District Council -v- Gray 1987 SLT (Sh Ct) 70. In the case of decanting, the abatement will be 100%. This sentence is inserted to contractually clarify the common law position. Without this provision, the tenant might be put in the invidious position of suffering not only the inconvenience of decanting but also the imposition of a higher rent, perhaps more than s/he could afford.


Note 5.15: The duties of repair contained in this part continue until the Agreement is terminated in one of the ways set out in Part 6. Thus, even where the landlord is pursuing recovery of possession, the duties of repair still stand. The position is, of course, the same where a tenant has served notice that s/he wishes to exercise the right to buy. Until ownership passes to the tenant, the landlord has the duties of repair contained in this Part - not just to keep the house wind and water tight.


Note 5.16: It is normal for the tenant to be placed under an obligation to report the need for repairs. In addition, the landlord's obligation to repair after the commencement of the tenancy is not triggered until it becomes aware of the need for a repair - see Note 5.3.


Note 5.17: This reflects the common law (Erskine Institutes II, 6, 43 ; McLellan -v- Kerr (1797) Mor 10134 , Mickel -v- McCoard 1913 SC 896). See also Note 2.2 and Warren -v- Kean [1954] 1 QB 15. The Tenant's Handbook may specify what is meant by minor repairs and maintenance. By minor repairs and maintenance is meant things like replacing batteries in smoke alarms, replacing lightbulbs, replacing keys, etc. It is important that the examples given in the handbook do not seek to place a responsibility on the tenant which is that of the landlord. For example, clearing choked drains or pipes is a landlord's responsibility which cannot be contracted out (Sch 10(3), 1987 Act) unless the disrepair has resulted from the failure of the tenant to use the house in a proper manner.
The third sentence (cleanliness) is a reflection of the tenant's duty to act in a reasonably tenantlike fashion ( see Note 2.2). This obligation should not be interpreted strictly given the wide variance in personal standards. It is intended to deal with states of uncleanliness which go beyond aesthetics and into serious issues of hygiene and safety.
The final sentence reflects the common law: minor degrees of deterioration are normal and acceptable and neither party has a duty to repair: see e.g. Plough Investments v Manchester City Council [1989] 1 EGLR 244. Finally, landlords may wish to insert a contractual provision forbidding tenants from carrying out minor internal work which could prejudice health and safety: such as the painting or covering of gas fire surrounds with unsuitable materials. The tenant's handbook could give further examples


Note 5.18: The first two sentences are simply a brief reference to Regulations made in terms of s27(2): The Scottish Secure Tenants (Right to Repair)(Scotland) Regulations 2002: The Regulations apply to Scottish secure tenants short Scottish secure tenants and tenants of local authorities, RSLs and water and sewerage authorities. Tenants covered by the Regulations have the right to have certain repairs carried out within a particular timescale. If the repairs are not done within that timescale, the tenant may instruct a contractor from a list held by the local authority. Compensation may be payable if the repair is still not done within specified timescales.


Note 5.19: This reflects the common law position (Rankine on Leases, p242; Gloag on Contract (2 nd ed. 1929), p629; Baird -v- Inglis (1671) 2 BS 562). However, the common law position has been modernised and modified by tying it in to the landlord's complaints procedure. All social landlords have one and are expected to have one by the regulatory authority that was Scottish Homes. See Part 9 of the Agreement. The modification to the common law right proposed in this paragraph is designed to achieve a reasonable compromise between the need for the tenant to have repairs done within a reasonable time and the need for the landlord to retain some control over how and when repairs are carried out on its properties and which type. The paragraph warns the tenant that legal advice should be taken before exercising this right. This is so that the tenant can check his/her legal position and in particular whether the repairs that the tenant wants to be carried out are repairs that the landlord is obliged to carry out. It is only where the landlord is in breach of its obligations as set out in paragraphs 5.1 to 5.15 that the right of the tenant to carry out the repairs and deduct the cost from the rent arises. If the tenant does so in respect of repairs which are not the obligation of the landlord, or the cost is unreasonable, the landlord may well succeed in an action for eviction based on rent arrears.


Note 5.20: This paragraph does not impose any contractual obligation and may be removed to the Tenant's Handbook. However, it is an important area and some landlords may wish to retain it in the Agreement.


Note 5.21: This paragraph is intended to summarise the statutory position: see s28 and Sch 5, Part 1 as well as paragraph 10.3 of this Agreement. The examples in the second bullet point are added for clarity; they do not appear in the statute. The examples in the third bullet point are taken from the statute. The fourth bullet point is taken, by implication, from s28(1).


Note 5.22: This is a reference to s29 (power but not duty to make compensation) and s30 (duty to pay compensation in certain circumstances). S 30 prescribes which tenants are entitled to compensation ontermination of the tenancy and in which circumstance. Regulations made under s30 prescribe the precisecircumstances and make further provision. These are The Scottish Secure Tenants (Compensation for Improvements) Regulations 2002. See also transitional provisions in The Housing (Scotland) Act 2001(Commencement No. 5, Transitional Provisions and Savings) Order 2002


Note 5.23: This provides a contractual remedy for a breach of 5.21.


General Note to Part 6

This Part is intended to reflect section 12, which provides for 6 ways in which a secure tenancy may be terminated and Sch 2 which provides for the grounds for eviction. In addition, exercise of the right to buy under Part III of the 1987 Act (as heavily amended by Part 2, Chapter 2 of the 2001 Act) also terminates the tenancy. A joint tenant may terminate his/her interest by simple notice under s13. This Part of the Agreement simply glosses the statutory provisions without any attempt to alter them contractually except for 6.10.


Note 6.1: This reflects s12(1)(f). Where there is a joint tenancy, and one only of the tenants wishes to terminate the tenancy, s 13 reverses the common law position (see Smith -v- Grayton Estates Ltd 1960 SC 349) and allows the tenancy to continue with the remaining joint tenant. See paragraph 6.8. Under the Matrimonial Homes (Family Protection) (Scotland) Act 1981, the consent of the 'non-entitled spouse' is required before valid 'dealing' in the matrimonial home can take place: see also Note 4.4.


Note 6.2: See s12(1)(e) and Note 6.1.


Note 6.3: The grounds for eviction are all those contained within Schedule 2. See s14 to 16. In relation to the final bullet point, it should be noted that the co-habitee must have resided in the house for 6 months before the application for the transfer. The statutory notice must be served on all "qualifying occupiers" (s 14(6)) which are indicated in the paragraph. See The Scottish Secure Tenancies (Proceedings for Possession) Regulations 2002
The landlord must first have made such enquiries as may be necessary to establish, so far as reasonably practicable, whether there are qualifying occupiers, and if so, their identities


Note 6.4: See ss17 to 19. Regulations made under s18(4) deal with the storage of any property left in the house by the tenant. They are found in The Scottish Secure Tenants (Abandoned Properties) Order 2002. That Order provides that all property found in a house which has been abandoned must be kept for a minimum period of 28 days and a notice must be given telling the tenant that. After the 28 days, if the property is not collected, it may be disposed of unless its value is greater than the cost of storing, in which case, it must be kept for a total period of at least 6 months.


Note 6.5 See s12(1)(c).


Note 6.6: See ss 61 to 79 of the 1987 Act (as heavily amended by the 2001 Act). The date of transfer of title is governed by the common law: Coopers Trs v Edinburgh District Council 1990 SLT 621, 1991 SLT 518 (HL)


Note 6.7: See s35. The short Scottish secure tenancy is defined by s34. The main difference between the short SST and the SST is that in terms of s36, the landlord may recover possession of the short SST without having to prove that it is reasonable that recovery of possession be granted by the court. The SST is converted to a short SST immediately the landlord serves a notice on the tenant conform to s35(3). Such a notice may only be served where any of the tenants, lodgers, subtenants (or anyone residing with the tenant) is subject to an anti-social behaviour order under s19 of the Crime and Disorder Act 1998.


Note 6.8: See ss 20 and 21.


Note 6.9: See s13.


Note 6.10: This contractual paragraph fulfils three main functions. First, a reminder to the tenant as to what s/he is legally obliged to do. Second, (points 4, 7, 10) the landlord gains a contractual right which will assist in the process of reletting and dealing with outstanding tenancy matters. Although the tenant has no common law or statutory obligation in respect of these three matters, it is submitted that these are reasonable requirements to impose. Thirdly, the tenant is reminded of the need to claim compensation for improvements done.


General Note to Part 7

Succession rights. See s22 and Sch 3.The 2001 Act widens the rights of succession and provides a clear hierarchy of successors. Carers may now succeed. Cohabitees, may succeed regardless of gender. The total number of successions is increased from one to two. This Part simply glosses the statutory provisions. There is nothing to stop landlords contractually improving on the position: for example allowing succession to co-habitees with less than 6 months residence so long as this does not prejudice the statutory rights of any other person.


Note 8.1: Gloss on the statutory position. The last sentence refers to s21(6) of the 1987 Act


Note 8.2: The first sentence applies to local authorities only: see s17A of the 1987 Act as amended by the 1993 Act. The second sentence applies to all Scottish secure landlords: s23(4).


Note 8.3: See s23(6) for all bullet points.


Note 8.4: For first bullet point, see s54. For second bullet point see s25. For third bullet point, see s54 and 76. For fourth bullet point see 17A(2) of the 1987 Act (local authorities only).. For the remainder of the bullet points, see s54. Note that in terms of s53, landlords are under a duty to develop a strategy to develop a tenant participation strategy. This strategy is to include consideration of the matters on which tenants and registered tenants organisations should be consulted. So, the list of matters in paragraph 8.4 on which tenants must be consulted is a minimum. This paragraph should therefore be amended by adding, on a local basis, those other matters on which it has been decided consultation will take place. It should also be noted that, in terms of s54(1), landlords are under a separate duty to consult with registered tenants organisations with regard to the matters referred to in s54(2). This duty is not referred to in the Agreement as it is not one which applies to the parties to this Agreement in their roles of landlord and tenant.


Note 9.1 As a matter of good practice, all landlords ought to have a clear comprehensive and accessible complaints procedure which is well publicised. It is expected that the regulator of social landlords will make this a requirement S23 requires the landlord to provide the tenant with information about its complaints procedure


Note 9.2 The complaints procedure should also make clear that the tenant has further recourse to an Ombudsman if still dissatisfied after going through the complaints procedure. The second sentence is optional.


Note 9.3: General. The right of a tenant to withhold rent on breach of contract by the landlord is a common law right which goes to the core of the contractual relationship between them.
At common law, the obligation to pay rent is suspended where the landlord has failed in its obligations. The tenant may withhold (or retain) the rent until the landlord's obligation is fulfilled or until an abatement of rent is allowed and its amount fixed (Gloag on Contract (2 nd edition 1929) p 628; Kilmarnock Light Co. -v- Smith (1872) 11 M 58). The right to withhold (or retain) rent is most typically done where the landlord is in material breach of its repair obligations ( Davie -v- Stark (1876) 3 R 1114; Fingland and Mitchell -v- Howie 1926 SC 319) i.e. it has failed to carry out repairs within a reasonable time. Where the tenant has lost possession of part or all of the house as a result of the landlords breach (or through some other supervening circumstance not being due to the fault of the tenant), he may be entitled to an abatement (i.e. reduction) in rent. (e.g. Stewart -v- Campbell (1889) 16 R 346; Muir -v- McIntyre (1887) 14 R 470). Thus, the tenant may not be required to pay the retained rent once the landlord has fulfilled his obligations and retention of rent intended to force the landlord to do repairs may turn into an abatement of rent for the period of disrepair (e.g. Renfrew District Council -v- Gray 1987 SLT (Sh Ct) 70). The common law right to retain rent may be modified by contract (e.g. Glasgow Corporation v Seniuk 1968 SLT (Sh Ct) 47). See also McBryde (1987) Contract, W. Green and Son, para 14.39 et. seq.
However, in this Agreement, the common law position has been modernised and modified by tying it in to the landlord's complaints procedure. All social landlords have one and are expected to have one by Communities Scotland. The modification to the common law right proposed in this paragraph is designed to achieve a reasonable compromise between the need for the tenant to have repairs done within a reasonable time and the need for the landlord to retain some control over how and when repairs are carried out on its properties and which type. The paragraph warns the tenant that legal advice should be taken before exercising this right. This is so that the tenant can check his/her legal position and in particular whether the landlord is indeed in breach of its obligation. It is only where the landlord is in breach of its obligations as set out in this Agreement that the right of the tenant to withhold rent arises. If the tenant withholds rent where the landlord is not in fact in breach of its obligations, the landlord may well succeed in an action for eviction based on rent arrears. The requirement that the tenant put the rent in an account and is in a position to evidence that is intended as a safeguard for both landlord and tenant although it is not, strictly speaking, a requirement at common law. This provision provides a certain protection to tenants to avoid the possibility of the tenant either wrongly withholding rent or misunderstanding the nature of the remedy. The tenant's rights to claim damages are not affected by this paragraph. Neither is the tenant's rights to obtain an order for specific implement, to complain to the Ombudsman or to exercise the common law right to do the repairs and deduct the costs from the rent (subject to the requirements of that right). In addition, the statutory right to repair ( see paragraph 5.18) guarantees the right to have certain urgent repairs carried out swiftly. It is thought that in these circumstances, this adjustment to the common law right is fair, reasonable and proportionate and does not fall foul of the Unfair Terms in Consumer Contract Regulations 1999.


Note 10.1: See those parts of the legislation noted in the paragraph.


Note 10.2: See s55.


Note 10.3: General. In terms of this Agreement, the tenant must obtain written permission before carrying out various activities, for example, making alterations or improvements, sub-letting and assignation. This paragraph summarises the procedure in all cases and the rights of appeal where they exist. That appeal must be within 21 days after the date of intimation of the notice, or a longer period if "special cause" is shown (Rule 2.6 of the Summary Applications, Statutory Applications and Appeals etc. Rules 1999 (SI 1999/929). Note that these procedures do not apply to joint tenancy requests under section 11(5).
First bullet point. Permission is required for actions under the following paragraphs: 2.3 (business use); 2.5 (pets); 2.10/11 (cutting trees etc); 2.16 (parking); 2.17 (storage); 2.18 (change agreement re use); 4.1 and 4.2 (sub-tenant, lodger, assignation, exchange, joint tenant); 5.21 (alterations and improvements) The landlord, as a public authority, should not refuse permission unreasonably. That obligation is made statutory in respect of some of the permissions.
Second bullet point. Although there is no common law or statutory obligation to give reasons in all cases, the trend in administrative law is now toward implying that duty in an increasing number of situations (see generally: Clyde and Edwards (2000) Judicial Review p531). In addition, there is a statutory duty in respect of some of the permissions. It is only fair that the decision be given as soon as reasonably possible. In respect of some permissions, there is a statutory time limit.
Third bullet point. Any conditions which are made must of course be reasonable ones. Withdrawal of the permission should be on reasonable grounds.
Fourth bullet point. If there is no statutory remedy provided, the complaints procedure is available. This is without prejudice to any other remedy that the tenant might have.
Fifth bullet point. This procedure is created by Sch 5, Part 2. Although the right to convert the tenancy to a joint tenancy given by section 11(5) does not explicitly refer to an appeals mechanism in the case of refusal (in the way provided for by s 32), the appeals mechanism is available where the tenant "otherwise" wishes to "give up to another person possession of the house or any part of it" (s32(1) which must include a joint tenancy. The reference to 21 days is specified in the Sheriff Court Summary Application Rules 1999.
Sixth bullet point. This procedure is created by Sch 5, Part 1. The reference to 21 days is specified in the Sheriff Court Summary Application Rules 1999.
Seventh bullet point. This procedure is created by s26. The reference to 21 days is specified in the Sheriff Court Summary Application Rules 1999.


Note 10.4: The first sentence is contractual and is for clarification purposes. Landlords may wish, for administrative purposes to specify exactly where any communications should be made to it. The second sentence reflects the terms of s40 and refers only to notices and documents which are required or authorised to be given under Chapter 1, Part 2 of the Act. The third sentence is contractual. However, even if the landlord is not told by the tenant of another address, if the landlord does know of another address which is the last address of the tenant, (perhaps after enquiries with neighbours), it is to that address that documents and notices under Chapter 1, Part 2 of the Act should be given.


Note 10.5: On signing the Agreement, the tenant should also be provided with a copy of the Tenants Handbook, which, among other things, will contain the Summary version of this Agreement. The signing up process is an important stage in the landlord/tenant relationship and provides a useful opportunity for the landlord to emphasise critical points. If the tenant was previously the tenant of the same house (i.e. the Agreement is being substituted for the pre-existing lease) the effect of signing the new Agreement is not to create a new tenancy, but to substitute new terms and conditions to an existing one. Therefore, any outstanding rights and obligations (for example in relation to legal action, rent arrears etc) continue. If the tenant is not already a tenant of the house, a new tenancy is created. See also paragraph 1.4 of Section One to this document


Note to Signing Section

This form of execution is designed to provide a 'self-proving' Agreement in terms of the Requirements of Writing (Scotland) Act 1995. That Act provides that tenancy agreements for one year or less do not require to be constituted in writing. However, s23(1) of the 2001 Act provides that the landlord must draw up a tenancy agreement (i.e. this Agreement) stating the terms of the tenancy, ensuring that before the commencement of the tenancy, it is subscribed by the landlord and the tenant in accordance with the 1995 Act and provide a copy of the agreement to the tenant. Thus the agreement must be in writing. A version not in writing, such as Braille, disc or tape, will not do. Although there is nothing in law to prevent the parties making a written agreement in a language other than English, the practical and legal difficulties associated with translation and legal interpretation mean that the version that is binding on the parties must be in English. There are special provisions in the 1995 Act concerned with signing of agreements by those who cannot read or write (s9 and schedule 3). There are also special provisions for signing by local authorities, companies and other bodies corporate (such as industrial and provident societies): (see schedule 2, an authorised officer, among others, may do so on behalf of the organisation). Each signature must be witnessed. The same witness can witness all signatures. It may happen that all parties do not sign at the same time: hence the separate provision of witness signature for each party. The tenant must be given the opportunity of reading the Agreement if s/he wishes. If s/he is not given a fair opportunity of doing so, then this is a relevant factor in assessing the validity of any clause in the Agreement : see Unfair Terms in Consumer Contract Regulations 1999. Section 8(1) of the 1995 Act provides that any annexation to an agreement does not require to be signed or subscribed by the parties in order to be incorporated into the agreement as long as that annexation is referred to in the document and the annexation is identified on the face of it as being that annexation referred to in the agreement. Where, however, that annexation shows or describes part or all of the land, to be incorporated into the agreement, a plan, drawing or photograph must be signed by both parties on each page and a schedule, appendix or inventory must be signed on the last page. As a matter of good practice, it is suggested that nonetheless, any other document which is to form a part of the Agreement (for example in relation to service charges) should also be signed and witnessed and reference made to this Agreement within it.

Derek O'Carroll, Advocate. July 2002

Contact

Email: ceu@gov.scot