Assignation and Scottish secure tenancies

Whilst at common law a tenant has the implied right to assign unfurnished premises, this has been modified for Scottish secure tenants. [1] A Scottish secure tenant cannot assign her/his tenancy except with their landlord's consent. Their landlord can only refuse consent for a request for assignation if there are reasonable grounds for doing so. [2] If a landlord decides to refuse the tenant's request then they must notify them in writing of their decision within one month of the landlord receiving the tenant's application to assign the tenancy. [3] If the landlord fails to respond to such a request within one month of the receiving it then s/he is deemed to have consented to the assignation. [4]

The prospective tenant to whom the property is to be assigned must also have lived in the tenancy as her/his only or principal home for the six months prior to the application to the landlord for consent to assign. [5]

From 1 November 2019 this changed to a 12-month period of qualification. The tenant or the person in question must have notified the landlord that the proposed assignee is residing in the property no less than 12 months previous to the application. There are transitional arrangements in place, which provide for tenants to give notification of the living arrangements in the 12 months prior to 1 November 2019 – prior to 1 May 2019, they could benefit from the existing six months' residency requirement (without having to give prior notice), but after that date they would need to give 12 months' prior notice.

A Scottish secure tenant who wishes to assign her/his tenancy has to serve on the landlord a written application to obtain the landlord's consent. [6] The application does not have to follow a specific format but it should clearly state:

• that the tenant wishes to assign her/his tenancy (not sublet or renounce)

• the address of the property

• the name of the assignee, who is the prospective tenant

• the date of the proposed assignation

• ideally, that the request is made in terms of section 32 and schedule 5 of the Housing (Scotland) Act 2001.

If the tenant is to receive any payment for assigning the tenancy, details of the payment should also be given.

A landlord may respond to the request by simply sending out a standard form for the assignor to complete and return.

If the landlord does not respond within the prescribed one month period, then the assignee can start paying rent, or apply for housing benefit, and then write to the landlord stating that consent has effectively been given and that the assignee has been the tenant from 'x' date. If the landlord refuses to accept this, the client should be referred to a solicitor as a summary application in court may have to be made.

If the landlord is refusing to give consent then s/he must detail the reasons for that refusal. [7] The tenant has the right to appeal to the sheriff court if the landlord refuses consent. Appeal is made by way of summary application to the Sheriff Court. [8]

A tenant who is considering an appeal should be referred to a specialist solicitor who can address the particular facts of individual cases. Nevertheless, it is worth noting that the deadline for lodging a summary application is 21 days from the notice of the decision. [9] A Sheriff has discretion to allow late applications 'on special cause shown'. [10] However, late applications will not always be accepted and legal advice should always be sought as soon as possible. For a discussion on 'special cause shown' see the case of Clarke v Mackenzie. [11]

The court must order the landlord to consent to the application unless it considers that the refusal is reasonable. [12]

Reasonable grounds include:[13]

• a notice of proceedings for possession has been served on the tenant which specifies any of the 'conduct' grounds for eviction. (For more information on eviction, please see the section on Scottish secure tenancies.)

• an order for recovery of possession has been made against the tenant

• it appears to the landlord that the tenant is to receive a payment for the assignation which is other than reasonable rent or a reasonable and returnable security deposit (for gas, electricity, telephone or other domestic supplies or damage to the property or contents)

• the assignation would lead to overcrowding

• the landlord proposes to carry out work on the house or building which would affect the accommodation in question.

• For RSL and LA tenancies, the proposed assignee would not be a person who would have 'reasonable preference' under s.20(1) of the 1987 Act

• if the assignation would, in the opinion of the landlord result in under occupation

If the landlord is a co-operative housing association, any assignation is also subject to the condition that the new tenant is a member of the housing co-operative when the assignation takes place or when the new tenant takes possession. [14] An application for membership should therefore be made as soon as possible and preferably prior to the existing tenant contacting her/his landlord seeking consent for the assignation. [15]

This list is not exhaustive and the Scottish Ministers can modify it. [16]

In addition, case law has demonstrated that the sheriff is not restricted to these matters alone. In considering reasonableness this is based on the circumstances at the time the decision is made by the landlord but (outside of the statutory reasonable grounds mentioned above) the landlord must show that they have considered 'all relevant matters'. [17]

Other factors that may be considered include whether or not the transaction is for financial gain, or to get round allocation rules, [18] and the creditworthiness of the new tenant. [19]

Clients with a Scottish secure tenancy (SST) have a right to request a mutual exchange, and must get written consent from their landlord [20].

A mutual exchange is in effect a ‘swap’ of a tenancy. Each tenant will have an SST in their new tenancy once the swap is complete.

A registered social landlord can refuse a request for a mutual exchange only if it has reasonable grounds for doing so. Legislation provides examples of reasonable grounds for refusing such consent. [21]

These include, but are not limited to:

• a notice of proceedings for possession has been served on the tenant which specifies any of the 'conduct' grounds for eviction (see the section on Scottish secure tenancies)

• an order for recovery of possession by the sheriff court has been made against the tenant

• the tenant was provided the tenancy because of their employment with the landlord

• the property is adapted for a disabled person, and there would no longer be an occupant with those needs if the swap happened

• the accommodation is larger than that required by the proposed tenant and their family, or is not suitable for their needs

• the swap would lead to overcrowding

If the landlord is a co-operative housing association, any swap is also subject to the condition that the new tenant is a member of the housing co-operative when the swap takes effect. [22]