Tenancies that cannot be assured

A tenancy will not be assured if it falls within one of the exemptions in Schedule 4 of the Housing (Scotland) Act 1988 (as amended). [1]

No new assured or short assured tenancies can be created on or after 1st December 2017. Private tenancies created after this date will will private residential tenancies subject to exemptions similar to those below.

Tenancies that began before 2 January 1989, or that are under a contract made before that date, cannot be assured. An exception to this general rule is where there was a transfer of the landlord's interest in a secure tenancy from a public sector landlord to Scottish Homes or a body approved by Scottish Homes. [2] In this situation the secure tenancy will have become an assured tenancy upon transfer, but could not have become a short assured tenancy. From 30 September 2002, all such tenancies will become Scottish secure tenancies.

Tenancies at a low rent cannot be assured tenancies. [3] Such tenancies are very rare. 'Low rent' figures are stipulated by statutory instrument. The current figure is £6 per week. [4] In calculating the rent, money paid for services, repairs, maintenance and insurance should be ignored.

Where the Tenancy of Shops (Scotland) Act 1949 applies to a tenancy, the tenancy cannot be assured. [5]

Licensed premises cannot be the subject of an assured tenancy. [6] This applies to anywhere that sells alcohol for consumption on the premises. It therefore includes restaurants, hotels, wine bars and so on, but excludes off-licences. This provision does not prevent, for example, a publican letting a flat above a pub on an assured tenancy.

Where the tenancy includes agricultural land exceeding two acres, the tenancy cannot be assured, but is likely to be covered instead by the Agricultural Holdings (Scotland) Act 1991. [7]

Although most tenancies governed by the Agricultural Holdings (Scotland) Act 1991 (within the meaning of the Agricultural Holdings (Scotland) Act 2003) are likely to be already exempted from being assured tenancies by the 'tenancies of agricultural land' provision, this provision will also exempt agricultural holdings under two acres. [8]

Lettings to students, where the student is renting accommodation from their educational establishment, cannot be assured tenancies. [9] This does not apply to students who rent from other parties, such as private landlords. Most educational establishments come under this exemption, such as universities, central institutions, designated institutions, further education colleges, colleges of education and the Royal College of Surgeons of Edinburgh. [10]

This exemption will apply even if the educational establishment is itself the tenant of a private landlord and is subletting to one of its students.

If the purpose of the tenancy is to provide holiday accommodation, the tenancy cannot be assured. [11] Landlords in the past have tried to abuse this exemption in order to prevent their tenants from enjoying the security offered by full-assured status.

Where there are any doubts it may be useful to look at whether the let has features which suggest that it falls under the requirements to meet a particular tenancy type. For example, is it the clients only or principal home? If this is the case then it is arguable that, even if the property was advertised or in some way described as a holiday let, it may in fact be an assured tenancy.[12]

Additionally, any property used for holiday lettings must have a short-term let licence with the relevant local authority. Anyone providing a short-term let must display a copy of the licence and licence conditions in a place accessible to guests. [13]

If no short-term let licence is available, it should be reported to the relevant local authority team. The Scottish Government has provided guidance on handling short term lets complaints. Check mygov.scot for more guidance on short-term let licences.

Where the tenant shares accommodation with the landlord, the tenancy is not assured. However, the definition of 'resident landlord' is quite complicated. A number of conditions must be fulfilled: [14]

• The accommodation let to the tenant (house, or part of a house) must form only part of a building.

• The landlord must have been living in accommodation that also forms part of the building before the tenancy was created. If the landlord moves in after the tenant, the tenant will not lose their assured status. This also applies if the tenant accepts a new tenancy in another part of the building from the resident landlord.

• The landlord must have continued to live in the accommodation as their only or principal home for the duration of the tenancy. (It does not matter if the identity of the landlord changes during the tenancy, so long as the new landlord also lives in the accommodation as her/his only or principal home for the duration of the tenancy).

• At the creation of the tenancy, there was an ordinary means of access to the tenant's accommodation by way of the landlord's accommodation (or vice versa).

Advisers need to be vigilant in such cases, as there can often be difficulties in defining resident landlords and some tenants may not appreciate their rights. '[15] resident landlord will not be a resident landlord if s/he is living in a large flat or house that has been divided up into self-contained units which have separate independent access'. [16]

If a resident landlord sells the property, the new resident landlord is allowed up to 28 days to take up occupation of the dwelling as their only or principal home before the tenancy becomes assured. The counting begins on the day of the sale. Alternatively, if the new landlord notifies the tenant in writing within the 28-day period that they intend to take up occupation, they can have up to six months from the day of the sale. During such a period the landlord is treated as a resident landlord and has all the rights and obligations that a resident landlord enjoys.

If a resident landlord dies, the tenancy will be treated as being subject to a resident landlord for up to two years, while the executor settles the estate. The new landlord who has inherited the property may move in during this period and still be treated as a resident landlord.

There are other complicated and technical rules about resident landlords where the landlord's interest is held in trust for a person who lives in accommodation in the building and is entitled to the liferent or fee of the landlord's interest. [17] Advisers are unlikely to come across rights in liferent and fee very often. They are particular forms of property right under Scots law. An example of such rights being created is where someone dies and leaves a will that gives their spouse the right to use certain property for the duration of the spouse's life (a liferent). At the same time, the will can give a right to another (for example, a child) to become the full owner of the property on the death of the liferenter. This is called a right in fee. [18]

Tenancies that belong to the Crown or a government department cannot be assured. Tenants of property owned by the Ministry of Defence come under this exemption. This exemption does not apply where the Crown Estate Commissioners are managing the property. [19]

A tenancy cannot be assured if the landlord is:

• a local authority [20]

• a fully mutual co-operative housing association [21]

• a registered social landlord [22]

• Scottish Water. [23]

Local authorities have duties under homelessness legislation to provide homeless applicants with accommodation. [24] Where they carry out such duties by having another party grant a tenancy on a temporary basis, the tenancy cannot be assured. [25]

Under the Social Work (Scotland) Act 1968, local authorities have a duty to provide advice, guidance and assistance to offenders released from prison. Tenancies granted for less than six months under this provision will not be assured. [26]

Tenancies granted to asylum seekers or their dependants under Section 4 or Part VI of the Immigration and Asylum Act 1999 will not be assured. [27] For more information on accommodation for asylum seekers, please see the section on asylum seekers.

Where an occupier part owns and part rents their home, no assured tenancy can exist. [28] (The legal relationship in this arrangement, in any respect, is not one of landlord and tenant). [29]

Where the same landlord grants a new tenancy to an existing regulated tenant, [30] they will continue to be a regulated tenant. This applies even if the new tenancy begins after 2 January 1989. This rule also applies where the tenant is given suitable alternative accommodation as part of an order for possession over their previous tenancy. [31]