Assured Tenancies in Scotland - Your Rights and Responsibilities
PART 1: ASSURED TENANCIES - WHAT THEY ARE
1. What is an assured tenancy?
A letting of all or part of a house made after 2 January 1989 is normally an assured tenancy as long as it is the tenant's only or principal home. But it will not be an assured tenancy if it comes within one or more of the exceptions listed in the answers to question 2. It makes no difference whether the house or part of the house let is furnished or unfurnished. The Housing (Scotland) Act 1988 gives assured tenants protection from eviction ('security of tenure'), and in certain circumstances they can ask the rent assessment committee to determine a market rent for the house they are renting. These matters are explained in more detail later in this booklet.
2. What lettings are not assured tenancies?
1 . a tenancy entered into or resulting from a contract made before 2 January 1989;
2. a tenancy with no rent or a rent of less than £6 a week or its monthly or yearly equivalent;
3. a tenancy of a house which is also a shop or is licensed to sell alcohol for consumption on the premises;
4. a house which is let together with more than 2 acres of agricultural land;
5. a tenancy of a house which forms part of an agricultural holding and the house is occupied by the person responsible for farming the holding;
6. a letting by a university, central institution, or other specified educational institution for a student pursuing a course of study there or at another specified educational institution;
7. a letting for a holiday;
8. a tenancy where the landlord is a 'resident landlord'. (The meaning of a 'resident landlord' is briefly that the landlord's only or main home must, immediately before the tenancy starts, and at all times during the tenancy, be in the same building as the house or rooms which the tenant is renting; and there must be a direct access, such as a doorway, between the landlord's part of the house and the tenant's part);
9. a letting by the Crown or a government department;
10. a letting by a local authority, Scottish Homes or a co-operative housing association;
11. a tenancy under a shared ownership agreement; a right to occupy the house because of an agreement which does not create a tenancy - for example, because all the accommodation is shared with someone occupying it under a separate agreement. (The difference between a tenancy and some other form of agreement is not always straightforward. Even if the agreement is not called a tenancy agreement it may in fact be one, for example, if a tenant has the exclusive use of one room, possibly a bedroom, but shares all the other accommodation, a tenancy will exist);
12. a tenancy on a temporary basis for homeless persons.
3. Can a tenancy starting after 2 January 1989 ever be a regulated tenancy?
A letting starting after 2 January 1989 will be a regulated tenancy and not an assured tenancy where:
a. a regulated tenant is moving to a house owned by the same landlord; or
b. a regulated tenant (original tenant) has died and the tenancy passes on to his spouse as a statutory regulated tenancy; or
c. a regulated tenant is moved into suitable alternative accommodation - but the sheriff orders that the alternative accommodation must be let on a regulated tenancy.
If you have been a regulated tenant and you are uncertain about a new let being offered on an assured tenancy you should get legal advice.
4. What is a short assured tenancy?
A short assured tenancy is a special type of assured tenancy. It gives special rights to the landlord to repossess a house he has let (see question 12) and special rights to the tenant to apply to a rent assessment committee for a rent determination (see question 45). A short assured tenancy must be for at least 6 months. A landlord must give to the tenant before any tenancy agreement is signed a notice (notice AT5) stating that the tenancy on offer is a short assured tenancy. Details of where to obtain copies of this notice are given on page 35. (If at the end of one short assured tenancy the landlord offers the same tenant another short assured tenancy of the same house, he need not serve another notice AT5 and the new tenancy may be for less than 6 months).
5. Can an assured tenancy be changed into a short assured tenancy?
An assured tenancy cannot be changed into a short
assured tenancy unless:
a. the landlord gains possession of the house let on an assured tenancy and re-lets it to the same tenant as before, but this time on a short assured tenancy; or
b. landlord and tenant agree to the change.
6. What is the difference between a contractual assured tenancy and a statutory assured tenancy?
The assured tenancy offered by a landlord at the beginning of the tenancy will be a contractual assured tenancy for a set period of time. In other words, the landlord and tenant will make an agreement or ,contract' which will set out the terms and conditions on which the letting is made.
A statutory assured tenancy begins when the contractual assured tenancy is brought to an end by the landlord serving a notice to quit on the tenant. (It is important to understand that a notice to quit does not necessarily mean that the tenant must leave: see question 19). If the tenant continues to stay in the house after the contractual assured tenancy has been ended by a valid notice to quit, and if he does not agree to a new contractual tenancy with his landlord, the tenancy automatically becomes a statutory assured tenancy. It is called this because the tenant's right to remain in possession of the house derives from 'statute' (a law made by Parliament) and not from a contract. A statutory assured tenancy can also result when a tenant has succeeded to an assured tenancy (see question 32).
Be clear about which of these two types of tenancy exists at a particular time because, as is explained later the type of tenancy can affect the rights and responsibilities of both tenant and landlord.