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Housing (Scotland) Act 1988

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Assured tenancies—security of tenureS

16 Security of tenureS

(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 [F1or fixed by reference to factors specified in] that contract or by a percentage there specified [F1or fixed by reference to factors there specified,] of an amount of rent payable under the tenancy,

and references in this Part of this Act to a “statutory assured tenancy” are references to an assured tenancy which a person is continuing to have by virtue of this subsection, subsection (1) of section 31 below, or section 3A of the M1Rent (Scotland) Act 1984.

[F2(1A)The factors referred to in subsection (1)(b)(ii) above must be—

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

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

(2)A statutory assured tenancy cannot be brought to an end by the landlord except by obtaining an order of the [F3First-tier Tribunal] in accordance with the following provisions of this Part of this Act.

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

Textual Amendments

Marginal Citations

17 Fixing of terms of statutory assured tenancy.S

(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 [F4the First-tier Tribunal] under subsection (4) below in the prescribed form; and

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

(4)Where a notice under subsection (2) above is referred to [F5the First-tier Tribunal], the [F6First-tier Tribunal] shall consider the terms proposed in the notice and shall determine whether those terms, or some other terms (dealing with the same subject matter as the proposed terms), are such as, in the [F7First-tier Tribunal’s] opinion, might reasonably be expected to be found in a contractual assured tenancy of the house concerned, being a tenancy—

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

(b)which is granted by a willing landlord on terms which, except in so far as they relate to the subject matter of the proposed terms, are those of the statutory assured tenancy at the time of the [F7First-tier Tribunal’s] consideration.

(5)Whether or not a notice under subsection (2) above proposes an adjustment of the amount of the rent under the statutory assured tenancy, where [F8the First-tier Tribunal determines] any terms under subsection (4) above, [F9it shall, if it considers] it appropriate, specify such an adjustment to take account of the terms so determined.

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

(7)Where a notice under subsection (2) above is referred to [F10the First-tier Tribunal], then, unless the landlord and the tenant otherwise agree, with effect from such date as the [F11First-tier Tribunal] may direct—

(a)the terms determined by the [F11First-tier Tribunal] shall become terms of the statutory assured tenancy in substitution for any other terms dealing with the same subject matter; and

(b)the amount of the rent under the statutory assured tenancy shall be altered to accord with any adjustment specified by the [F11First-tier Tribunal],

but for the purposes of paragraph (b) above, the [F11First-tier Tribunal] shall not direct a date earlier than the date on which the notice in question was referred to them.

(8)Nothing in this section requires [F12the First-tier Tribunal] to continue with a determination under subsection (4) above if the tenancy has been brought to an end by order of the [F13First-tier Tribunal] under this Part of this Act or if the landlord and tenant give notice in writing that they no longer require such a determination.

Textual Amendments

18 Orders for possession.S

(1)The [F14First-tier Tribunal] shall not make an order for possession of a house let on an assured tenancy except on one or more of the grounds set out in Schedule 5 to this Act.

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

F15(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F16(3A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4)If the [F17First-tier Tribunal] is satisfied that any of the grounds in [F18Part I or II] of Schedule 5 to this Act is established, [F19the Tribunal] shall not make an order for possession unless [F19the Tribunal] considers it reasonable to do so.

[F20(4A)In considering for the purposes of subsection (4) above whether it is reasonable to make an order for possession on Ground 11 or 12 in Part II of Schedule 5 to this Act, the [F21First-tier Tribunal] shall have regard, in particular, to]—

[F22(a)] the extent to which any delay or failure to pay rent taken into account by the [F21Tribunal] in determining that the Ground is established is or was a consequence of a delay or failure in the payment of relevant housing benefit [F23or relevant universal credit] [F24, and

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

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

(6)The [F25First-tier Tribunal] shall not make an order for possession of a house which is for the time being let on an assured tenancy, not being a statutory assured tenancy, unless—

(a)the ground for possession is Ground 2 F26... in Part I of Schedule 5 to this Act or any of the grounds in Part II of that Schedule, other than Ground 9 F27... Ground 10 [F28, Ground 15] or Ground 17; and

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

[F29(6A)Nothing in subsection (6) above affects the [F30First-tier Tribunal] 's power to make an order for possession of a house which is for the time being let on an assured tenancy, not being a statutory assured tenancy, where the ground for possession is Ground 15 in Part II of Schedule 5 to this Act.]

(7)Subject to the preceding provisions of this section, the [F31First-tier Tribunal] may make an order for possession of a house on grounds relating to a contractual tenancy which has been terminated; and where an order is made in such circumstances, any statutory assured tenancy which has arisen on that termination shall, without any notice, end on the day on which the order takes effect.

[F32(8)In [F33subsection (4A)] above—

(a)“relevant housing benefit” means—

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

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

[F34(aa)“relevant universal credit” means universal credit to which the tenant was entitled which includes an amount under section 11 of the Welfare Reform Act 2012 in respect of the rent;]

(b)references to delay or failure in the payment of relevant housing benefit [F35or relevant universal credit] do not include such delay or failure so far as referable to any act or omission of the tenant.]

[F36(9)Regulations under subsection (4A)(b) may make provision about—

(a)information which should be provided by a landlord to a tenant (including information about the terms of the tenancy, rent arrears and any other outstanding financial obligation under the tenancy),

(b)steps which should be taken by a landlord with a view to seeking to agree arrangements with a tenant for payment of future rent, rent arrears and any other outstanding financial obligation under the tenancy,

(c)such other matters as the Scottish Ministers consider appropriate.

(10)Regulations under subsection (4A)(b) are subject to the affirmative procedure (see section 29 of the Interpretation and Legislative Reform (Scotland) Act 2010 (asp 10)).]

Textual Amendments

Modifications etc. (not altering text)

C1S. 18 modified (temp.) (28.10.2022) by virtue of Cost of Living (Tenant Protection) (Scotland) Act 2022 (asp 10), s. 13(1), sch. 2 para. 5(2) (with ss. 1(2), 6, 7, 8) (as amended (1.4.2023) by S.S.I. 2023/82, regs. 1(3), 2(2); and (27.9.2023) by S.S.I. 2023/275, regs. 1(2), 2(2))

19 Notice of proceedings for possession.S

(1)The [F37First-tier Tribunal] 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)[F38the Tribunal] considers it reasonable to dispense with the requirement of such a notice.

(2)The [F39First-tier Tribunal] shall not make an order for possession on any of the grounds in Schedule 5 to this Act unless that ground [F40and particulars of it are] 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 [F39Tribunal].

(3)A notice under this section is one [F41in the prescribed form] 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.

F42(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(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.

Textual Amendments

Modifications etc. (not altering text)

C2S. 19 modified (temp.) (28.10.2022) by virtue of Cost of Living (Tenant Protection) (Scotland) Act 2022 (asp 10), s. 13(1), sch. 2 para. 5(3) (with ss. 1(2), 6, 7, 8) (as amended (1.4.2023) by S.S.I. 2023/82, regs. 1(3), 2(2); and (27.9.2023) by S.S.I. 2023/275, regs. 1(2), 2(2)))

C3S. 19 modified (temp.) (28.10.2022) by virtue of Cost of Living (Tenant Protection) (Scotland) Act 2022 (asp 10), s. 13(1), sch. 2 para. 5(3) (with ss. 1(2), 6, 7, 8) (as amended (1.4.2023) by S.S.I. 2023/82, regs. 1(3), 2(2); and (27.9.2023) by S.S.I. 2023/275, regs. 1(2), 2(2))

[F4319ARequirement to notify local authority of proceedings for possessionS

(1)Where a landlord raises proceedings for possession of a house let on an assured tenancy, the landlord shall give notice of the raising of the proceedings to the local authority in whose area the house is situated, unless the landlord is that local authority.

(2)Notice under subsection (1) above shall be given in the form and manner prescribed under section 11(3) of the Homelessness etc. (Scotland) Act 2003 (asp 10).]

Textual Amendments

F43S. 19A inserted (2.10.2008 for specified purposes, 1.4.2009 in so far as not already in force) by Homelessness etc. (Scotland) Act 2003 (asp 10), s. 14(1), Sch. para. 3; S.S.I. 2008/313, art. 2(a)(b)

20 [F44Extended discretion of First-tier Tribunal in possession claims]S

(1)[F45The] [F46First-tier Tribunal] may adjourn for such period or periods as [F47the Tribunal] thinks fit, proceedings for possession of a house let on an assured tenancy.

(2)On the making of an order for possession of a house let on an assured tenancy or at any time before the execution of such an order, the [F48First-tier Tribunal] , subject to subsection (6) below, may—

(a)sist or suspend execution of the order; or

(b)postpone the date of possession,

for such period or periods as [F49the Tribunal] thinks fit.

(3)On any such adjournment as is referred to in subsection (1) above or on any such sist, suspension or postponement as is referred to in subsection (2) above, the [F50First-tier Tribunal] , unless [F51the Tribunal] considers that to do so would cause exceptional hardship to the tenant or would otherwise be unreasonable, shall impose conditions with regard to payment by the tenant of arrears of rent (if any) and rent or payments in respect of occupation after the termination of the tenancy and may impose such other conditions as [F51the Tribunal] thinks fit.

(4)If any such conditions as are referred to in subsection (3) above are complied with, the [F52First-tier Tribunal] may, if [F53the Tribunal] thinks fit, recall any such order as is referred to in subsection (2) above.

(5)In any case where—

(a)at a time when proceedings are brought for possession of a house let on an assured tenancy, any person having occupancy rights under section 1 or 18 of the M2Matrimonial Homes (Family Protection) (Scotland) Act 1981 is in occupation of the house; and

(b)the assured tenancy is terminated as a result of those proceedings,

that person, so long as he or she remains in occupation, shall have the same rights in relation to, or in connection with, any such adjournment as is referred to in subsection (1) above or any such sist, suspension or postponement as is referred to in subsection (2) above, as he or she would have if those occupancy rights were not affected by the termination of the tenancy.

F54(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Marginal Citations

21 Special provisions applicable to shared accommodation.S

(1)This section applies in a case falling within subsection (1) of section 14 above and expressions used in this section have the same meaning as in that section.

(2)Without prejudice to the enforcement of any order made under subsection (3) below, while the tenant is in possession of the separate accommodation, no order shall be made for possession of any of the shared accommodation, whether on the application of the immediate landlord of the tenant or on the application of any person from whom that landlord derives title, unless a like order has been made, or is made at the same time, in respect of the separate accommodation; and the provisions of section 17 above shall have effect accordingly.

(3)On the application of the landlord, the [F55First-tier Tribunal] may make such order as [F56Tribunal] thinks just either—

(a)terminating the right of the tenant to use the whole or any part of the shared accommodation other than living accommodation; or

(b)modifying his right to use the whole or any part of the shared accommodation, whether by varying the persons or increasing the number of persons entitled to the use of that accommodation, or otherwise.

(4)No order shall be made under subsection (3) above so as to effect any termination or modification of the rights of the tenant which, apart from section 14(2) above, could not be effected by or under the terms of the tenancy.

Textual Amendments

22 Payment of removal expenses in certain cases.S

(1)Where the [F57First-tier Tribunal] makes an order for possession of a house let on an assured tenancy on Ground 6 or Ground 9 in Schedule 5 to this Act (but not on any other ground), the landlord shall pay to the tenant a sum equal to the reasonable expenses likely to be incurred by the tenant in removing from the house.

(2)Any question as to the amount payable by the landlord to a tenant by virtue of subsection (1) above shall be determined by agreement between the landlord and the tenant or, in default of agreement, by the [F58First-tier Tribunal] .

Textual Amendments

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