Housing (Scotland) Act 1986

Section 12.

SCHEDULE 1 Amendment of 1980 Act

1 In section 1 (secure tenant's right to purchase)—

(a) in subsection (1A)—

(i) after the word " Act" there shall be inserted the word " —(a) ";

(ii) in the proviso, for the word " subsection" there shall be substituted the word " paragraph "; and

(iii) after the proviso there shall be added the following paragraph—

“(b) a landlord mentioned in paragraph (a) or (ad) of section 10(2) of this Act is required neither to enter into, nor to induce (or seek to induce) any person to enter into, such agreement as is mentioned in paragraph (a) above or into any agreement which purports to restrict that person's rights under this Act.”;

(b) in subsection (4)(d), for the words " over the age of 18 years and at the relevant date the dwelling-house has been their only or principal home for a continuous period of 6 months, and" there shall be substituted the words " at least 18 years of age, that they have, during the period of 6 months ending with the relevant date, had their only or principal home with the tenant and that ";

(c) in subsection (5)—

(i) for the words " subsection (7)" there shall be substituted the words " subsections (7) and (7A) "; and

(ii) in paragraph (b)(ii), for the words "tenant or by any one of the joint tenants or by his spouse " there shall be substituted the words " appropriate person ";

(d) after subsection (5) there shall be inserted the following subsection—

“(5A) for the purposes of subsection (5)(b)(ii) above, the " appropriate person " is the tenant or, if it would result in a higher discount and if she is cohabiting with him as at the relevant date, his spouse ; and where joint tenants are joint purchasers the " appropriate person" shall be whichever tenant (or as the case may be spouse) has the longer or longest such occupation.”;

(e) in subsection (10)—

(i) after paragraph (d) there shall be inserted the following paragraphs—

“(dd) a registered housing association within the meaning of the [1985 c. 69.] Housing Associations Act 1985 ;

(ddd) the Housing Corporation ;”;

(ii) in paragraph (h), for the words " or section 19(9)(b) of the [1967 c. 77.] Police (Scotland) Act 1967 " there shall be substituted the words " , as read with subsection (9)(b) of section 19, of the Police (Scotland) Act 1967 or a joint police committee constituted by virtue of subsection (2)(b) of the said section 19 ";

(iii) in paragraph (i). after the words " 1959" there shall be inserted die words " (or a joint committee constituted by virtue of section 36(4)(b) of the [1947 c. 41.] Fire Services Act 1947) "; and

(iv) in paragraph (l). for the words " by the tenant or occupier " there shall be substituted the words " , whether by the tenant or his spouse, ";

(f) in subsection (11)—

(i) in paragraph (a), for the words " of paragraphs (a), (b) or (c)" there shall be substituted the words " paragraph, other than (g), "; and

(ii) at the end of paragraph (c) there shall be added the following paragraphs— “;

(d) where a landlord mentioned in paragraph (e) of section 10(2) of this Act has at no time received a grant under—

(i) any enactment mentioned in paragraph 2 of Schedule 1 to the Housing Associations Act 1985 (grants under enactments superseded by the [1974 c. 44.] Housing Act 1974);

(ii) section 31 of the Housing Act 1974 (management grants);

(iii) section 41 of the [1985 c. 69.] Housing Associations Act 1985 (housing association grants);

(iv) section 54 of that Act (revenue deficit grants);

(v) section 55 of that Act (hostel deficit grants); or

(vi) section 59(2) of that Act (grants by local authorities); or

(e) where a landlord so mentioned has at no time let (or had available for letting) more than 100 dwellings; or

(f) where a landlord so mentioned is a charity—

(i) entered in the register of charities maintained under the [1960 c. 58.] Charities Act 1960 by the Charity Commissioners for England and Wales; or

(ii) which but for section 4(4) of, and paragraph (g) of the Second Schedule to, that Act (exempt charities) would require to be so entered; or

(g) where by virtue of section 49(2) of the said Act of 1960 (extent) a landlord so mentioned is not one to which Part II of that Act (registration of charities etc.) applies, but—

(i) the landlord has, in respect of all periods from 14th November 1985, or from the date of first being registered by the Housing Corporation (whichever is the later), claimed and been granted (whether or not retrospectively) under section 360(1) of the [1970 c. 10.] Income and Corporation Taxes Act 1970 (special exemptions for charities) exemption from tax ; and

(ii) where such exemption has not been claimed and granted in respect of all periods from the said date of registration, the rules of the landlord, registered under the [1965 c. 12.] Industrial and Provident Societies Act 1965 and in force at that date were such as would have admitted of such exemption had it been claimed as at that date ; or

(h) where, within a neighbourhood, the dwelling-house is one of a number (not exceeding 14) of dwelling-houses with a common landlord, being a landlord so mentioned, and it is the practice of that landlord to let at least one half of those dwelling-houses for occupation by any or all of the following—

(i) persons who have suffered from, or are suffering from, mental disorder (as defined in the [1984 c. 36.] Mental Health (Scotland) Act 1984), physical handicap or addiction to alcohol or other drugs ;

(ii) persons who have been released from prison or other institutions ;

(iii) young persons who have left the care of a local authority,

and a social service is, or special facilities are, provided wholly or partly for the purpose of assisting those persons.”;

(g) after subsection (11) there shall be inserted the following subsections—

“(11A) The Secretary of State may by order amend, or add to, the list of classes set out in sub-paragraphs (i) to (iii) of paragraph (h) of subsection (11) above.

(11B) The Commissioners of Inland Revenue shall, as regards any registered housing association, at the request of the Secretary of State, provide him and the Housing Corporation with such information as will enable them to determine whether that association is a landlord in respect of which this section will not, by virtue of subsection (11) (g) above, apply; and where a registered housing association is refused exemption on a claim under section 360(1) of the [1970 c. 10.] Income and Corporation Taxes Act 1970 the Commissioners shall forthwith inform the Secretary of State and the Housing Corporation of that fact.

(11C) Where information has been received by the Housing Corporation under subsection (11B) above and having regard to that information the Corporation is satisfied that the housing association to which it relates is not a landlord in respect of which this section applies, they shall make an entry to that effect in the register of housing associations maintained by them under section 3(1) of the [1985 c. 69.] Housing Associations Act 1985 ; and they shall cancel that entry where subsequent information so received in relation to that housing association is inconsistent with their being so satisfied.”; and

(h) in subsection (12), in the definition of " occupation "—

(i) for paragraph (iii) there shall be substituted the following paragraphs—

“(iii)

as a child, or as the spouse of a child, of a person mentioned in paragraph (i) above who has succeeded, directly or indirectly, to the rights of that person in a dwelling-house occupation of which would be reckonable for the purposes of this section; but only in relation to any period when the child, or as the case may be spouse of the child, is at least 16 years of age ; or

(iv)

in the discretion of the landlord, as a member of the family of a person mentioned in paragraph (i) above who, not being that person's spouse or child (or child's spouse), has succeeded, directly or indirectly, to such rights as are mentioned in paragraph (iii) above ; but only in relation to any period when the member of the family is at least 16 years of age ; and”;

(ii) for the word " disregarded" there shall be substituted the words " regarded as not affecting continuity ";

(iii) for the word " subsection" there shall be substituted the words " subsections (3) and "; and

(iv) for the words "in connection with service by the tenant or occupier as a member of the regular armed forces of the Crown " there shall be substituted the words " as is mentioned in subsection (10)(f) above ".

2 In section 1A(2) (restriction on order vesting in landlord heritable proprietor's interest), for the words " of paragraphs (a), (b), (c) and (f) " there shall be substituted the words " paragraph, other than (8). ".

3 After section 1A there shall be inserted the following section—

“1B Provision of information to secure tenants.

(1) Whenever a new secure tenancy is to be created, if—

(a) by virtue of subsection (II) of section 1 of this Act, the dwelling-house is not one to which that section applies; or

(b) subsection (7) or (7A) of that section may (assuming no change in the date for the time being specified in the former subsection and disregarding any order made, or which might be made, by the Secretary of State under section 3(4)(b) of the Housing (Scotland) Act 1986) affect any price fixed, as regards the dwelling-house, under subsection (5) of that section,

the landlord shall so inform the prospective tenant by written notice.

(2) Where in the course of a secure tenancy the dwelling-house, by virtue of subsection (11) of the said section 1, ceases to be one to which that section applies, the landlord shall forthwith so inform the tenant by written notice.”.

4 In section 2(6) (time for serving notice of acceptance), after sub-paragraph (iiia) there shall be inserted the following sub-paragraph—

“(iiib) a finding or determination by the Lands Tribunal for Scotland in a matter referred to it under subsection (2)(d) of the said section 7 where no order is made under the said subsection (3)(b) ;”.

5 In section 4—

(a) in subsection (7)(a) (order affecting right of pre-emption where unreasonable proportion of dwelling-houses in rural area sold other than as principal homes), for the words "the number of dwelling-houses of which the council concerned is the landlord at the date of commencement of this Part of this Act" there shall be substituted the words " all relevant dwelling houses " ; and

(b) after subsection (7) there shall be inserted the following subsection—

“(7A) For the purposes of subsection (7)(a) above, a " relevant dwelling house " is one of which, at the date of—

(a) commencement of this Part of this Act, the council concerned; or

(b) coming into force of paragraph 5 of Schedule 1 to the Housing (Scotland) Act 1986, a registered housing association,

is landlord.”.

6 In section 5(1) (loan to purchase dwelling-house), after the word " body; " there shall be inserted the following paragraph—

“(aa) in the case where the landlord is the Housing Corporation or a registered housing association, to the Housing Corporation;”.

7 In section 6 (recovery of discount on early re-sale)—

(a) in subsection (1), for the words—

(i) from " (otherwise than" to " compulsory purchase) " there shall be substituted the words—

“(except as provided for in section 6A of this Act)”;

(ii) " 5 years " there shall be substituted the words " 3 years "; and

(iii) "a proportion of the discount under section 1(5)(b) of this Act in accordance with subsection (3) below " there shall be substituted the words " , in accordance with subsection (3) below, a proportion of the difference between the market value determined, in respect of the dwelling-house, under section 1(5)(a) of this Act and the price at which the dwelling-house was so purchased ";

(b) in subsection (3)—

(i) for the word " discount" there shall be substituted the word " difference ";

(ii) for the words from " 80 " to the end there shall be substituted the words " 66 per cent where it occurs in the second such year and 33 per cent where it occurs in the third such year. ";

(c) in subsection (5), at the end there shall be added the words " For the avoidance of doubt, paragraph (a) above applies to a standard security granted in security both for the purpose mentioned in sub-paragraph (i) and for that mentioned in sub-paragraph (ii) thereof as it applies to a standard security so granted for but one of those purposes. " ; and

(d) in each of subsections (5) and (6), for the words " repay a proportion of discount under this section" there shall be substituted the words " make a repayment under subsection (1) above ".

8 After section 6 there shall be inserted the following section—

“6A Cases where discount etc. is not recoverable.

(1) There shall be no liability to make a repayment under section 6(1) of this Act where the disposal is made—

(a) by the executor of the deceased owner acting in that capacity; or

(b) as a result of a compulsory purchase order ; or

(c) in the circumstances specified in subsection (2) below.

(2) The circumstances mentioned in subsection (1)(c) above are that the disposal—

(a) is to a member of the owner's family who has lived with him for a period of 12 months before the disposal; and

(b) is for no consideration:

Provided that, if the disponee disposes of the house before the expiry of the 3 year period mentioned in subsection (1) of section 6 of this Act, the provisions of that section will apply to him as if this was the first disposal and he was the original purchaser.”.

9 In section 8(1) (powers of local authorities to sell houses), for the words "Notwithstanding anything contained in any" there shall be substituted the words " Subject to section 74(2) of the [1973 c. 65.] Local Government (Scotland) Act 1973 (restriction on disposal of land) but notwithstanding anything contained in any other ".

10 In section 10(4)(6) (application of certain provisions to tenancies which are not secure tenancies), after the word "2" there shall be inserted the words " or 9 ".

11 In section 13(2) (succession to secure tenancy)—

(a) for paragraph (a) there shall be substituted the following paragraph—

“(a) a person whose only or principal home at the time of the tenant's death was the dwelling house and who was at that time either—

(i) the tenant's spouse ; or

(ii) living with the tenant as husband and wife ;”; and

(b) in paragraph (c), for the word " over " there shall be substituted the words " who has attained " .

12 In section 15 (power of court to adjourn proceedings for possession of dwelling-house)—

(a) in subsection (1), for the words from "1 to" to "Part I" there shall be substituted the words " 1 to 7 and 16 of Part I ";

(b) for subsection (2) there shall be substituted the following subsection—

“(2) Subject to subsection (1) above, in proceedings under the said section 14 the court shall make an order for recovery of possession if it appears to the court that the landlord has a ground for recovery of possession, being—

(a) a ground set out in any of paragraphs 1 to 5, 7 and 16 of the said Part I and specified in the notice required by the said section 14 and that it is reasonable to make the order ; or

(b) a ground set out in any of paragraphs 8 to 15 of the said Part I and so specified and that other suitable accommodation will be available for the tenant when the order takes effect; or

(c) the ground set out in paragraph 6 of the said Part I and so specified and both that it is reasonable to make the order and that other suitable accommodation will be available as aforesaid,”; and

(c) in subsection (3), after the words " (2)(b)" there shall be inserted the words " or (c) ".

13 For section 26 (restriction on residential requirements) there shall be substituted the following sections—

“26 Admission to housing list.

(1) In considering whether an applicant for local authority housing is entitled to be admitted to a housing list, an islands or district council shall take no account of—

(a) the age of the applicant provided that he has attained the age of 16 years ; or

(b) the income of the applicant and his family ; or

(c) whether, or to what value, the applicant or any of his family owns or has owned (or any of them own or have owned) heritable or moveable property ; or

(d) any outstanding liability (for payment of rent or otherwise) attributable to the tenancy of any dwelling-house of which the applicant is not, and was not when the liability accrued, a tenant; or

(e) whether the applicant is living with, or in the same dwelling-house as—

(i) his spouse ; or

(ii) a person with whom he has been living as husband and wife.

(2) Where an applicant—

(a) is employed in the area of the islands or district council; or

(b) has been offered employment in the area of the council; or

(c) wishes to move into the area of the council and the council is satisfied that his purpose in doing so is to seek employment; or

(d) has attained the age of 60 years and wishes to move into the area of the council to be near a younger relative; or

(e) has special social or medical reasons for requiring to be housed within the area of the council,

admission to a housing list shall not depend on the applicant being resident in the area.

(3) Where an islands or district council has rules which give priority to applicants on its housing list it shall apply those rules to an applicant to whom subsection (2) above applies no less favourably than it applies them to a tenant of the council whose housing needs are similar to those of the applicant and who is seeking a transfer to another dwelling-house belonging to the council.

(4) In this section and in section 27 of this Act " housing list" means a list of applicants for local authority housing which is kept by an islands or district council in connection with allocation of housing.

26A Allocation of local authority housing.

In the allocation of local authority housing an islands or district council—

(a) shall take no account of—

(i) the length of time for which an applicant has resided in its area; or

(ii) any of the matters mentioned in paragraphs (a) to (d) of section 26(1) of this Act; and

(b) shall not impose a requirement—

(i) that an application must have remained in force for a minimum period ; or

(ii) that a divorce or judicial separation be obtained; or

(iii) that the applicant no longer be living with, or in the same dwelling-house as, some other person,

before the applicant is eligible for the allocation of housing.”.

14 In section 27(2A) (certain registered housing association rules to be available for perusal), for the words " (1A)(a)(ii)" there shall be substituted the words " (lA)(b)(i) ".

15 In section 30—

(a) in subsection (4) (home loan interest rate chargeable) at the beginning there shall be inserted the words " Subject to subsection (8) below, "; and

(b) for subsection (8) (variation of home loan interest rate), there shall be substituted the following subsections—

“(8) Where the declaration of a new standard rate or, as the case may be, the determination of a new locally determined rate, affects the rate of interest chargeable under subsection (4) above by an islands or district council the council shall, as soon as practicable after such declaration or determination, serve in respect of each of its variable interest home loans a notice on the borrower which shall, as from the appropriate day—

(a) vary the rate of interest payable by him; and

(b) where, as the result of the variation, the amount outstanding under the advance or security would increase if the periodic repayments were not increased, increase the amount of the periodic repayments to such an amount as will ensure that the said outstanding amount will not increase.

(8A) In subsection (8) above, " the appropriate day " means such day as shall be specified in the notice, being—

(a) in the case of a new standard rate, a day not less than 2 weeks, nor more than 6 weeks, after service of the notice; and

(b) in the case of a new locally determined rate, the first day of the relevant period of 6 months.”.

16 In section 82 (interpretation), for the definition of "family" there shall be substituted the following definition—

• ‘" family ", and any reference to membership thereof, shall be construed in accordance with section 82A of this Act;’.

17 After section 82 there shall be inserted the following section—

“82A Members of a person's family.

(1) A person is a member of another's family for the purposes of this Act if—

(a) he is the spouse of that person or he and that person live together as husband and wife ; or

(b) he is that person's parent, grandparent, child, grandchild, brother, sister, uncle, aunt, nephew or niece.

(2) For the purposes of subsection (1)(b) above—

(a) a relationship by marriage shall be treated as a relationship by blood;

(b) a relationship of the half-blood shall be treated as a relationship of the whole blood ;

(c) the stepchild of a person shall be treated as his child; and

(d) an illegitimate child shall be treated as the legitimate child of his mother and reputed father.”.

18 At the end of Schedule 1 (tenancies which are not secure tenancies) there shall be added the following cross-headings and paragraphs—

“Police and fire authorities

8 A tenancy shall not be a secure tenancy if the landlord is an authority or committee mentioned in— (a) section 10(2)(h) of this Act and the tenant—

(i) is a constable of a police force, within the meaning of the [1967 c. 77.] Police (Scotland) Act 1967, who in pursuance of regulations under section 26 of that Act occupies the dwelling-house without obligation to pay rent or rates ; or

(ii) in a case where head (i) above does not apply, is let the dwelling-house expressly on a temporary basis pending its being required for the purposes of such a police force; or

(b) section 10(2)(i) of this Act and the tenant—

(i) is a member of a fire brigade, maintained in pursuance of the [1947 c. 41.] Fire Services Act 1947, who occupies the dwelling-house in consequence of a condition in his contract of employment that he live in close proximity to a particular fire station ; or

(ii) in a case where head (i) above does not apply, is let the dwelling-house expressly on a temporary basis pending its being required for the purposes of such a fire brigade.

Dwelling-houses part of, or within curtilage of, certain other buildings

9 A tenancy shall not be a secure tenancy if the dwelling-house forms part of, or is within the curtilage of, a building which mainly—

(a) is held by the landlord for purposes other than the provision of housing accommodation ; and

(b) consists of accommodation other than housing accommodation.”.

19 In Part I of Schedule 2 (grounds on which courts may order recovery of possession of dwelling-house)—

(a) in paragraph 10—

(i) for the words "The landlord intends" there shall be substituted the words " It is intended ";

(ii) for the word "it" there shall be substituted the words " such demolition or work "; and

(iii) for the words "do so without" there shall be substituted the words " take place without the landlord "; and

(b) at the end there shall be added the following paragraph—

“16 The tenant is the person, or one of the persons, to whom the tenancy was granted and the landlord was induced to grant the tenancy by a false statement made knowingly or recklessly by the tenant.”.