Introduction to security of tenure

The phrase 'security of tenure' can be used in a few different contexts within the law of leases, and it does not always mean the same thing.

Usually, 'security of tenure' is used as a label to describe how certain types of tenancy have statutory protection in relation to recovery of possession by the landlord.

Statute limits the circumstances in which a tenant may lose their home. When a landlord wishes to repossess a property from a tenant who enjoys security of tenure, they must follow the strict statutory rules about when this repossession is possible.

Sometimes, 'security of tenure' can be used to refer generally to the rights enjoyed by a tenant concerning the requirements of recovery of possession. When the phrase is used in this context, it has a more flexible meaning.

It is simply a way of saying 'the combination of rights and rules that govern the recovery of possession of residential accommodation'. In this sense, a tenant's security of tenure may have its source in a combination of common law, contract, and statute.

When giving advice it is important to establish first what legal relationship exists between the occupier of accommodation and the person(s) providing it. When this is determined it will then be possible to work out what the legal requirements are for recovery of possession.

The sources of the law of residential tenancies can be roughly divided into two parts: statute or statutory law – which covers Acts of Parliament and Statutory Instruments - and Common Law

Statutory law or enacted law is accepted by the courts as being law because it has been enacted by a body having legislative authority. Parliament is the primary legislative authority and the Scottish Parliament legislates on devolved matters, which includes housing.

In Scotland, the first enacted law in the field of landlord and tenant law was the Leases Act 1449 that protected tenants from the singular successors of their landlords. Many statutes have been passed since then which either deal entirely with landlord and tenant law, or have an influence on this aspect of law although they do not deal primarily with that subject, for example the Requirements of Writing (Scotland) Act 1995.

Where there is a conflict between the content of the common law and the content of statute, statute always takes precedence. However, there is a legal presumption against disturbing the common law unless the statute does so unequivocally. [1]

When new rules are introduced they will sometimes only apply to new tenancies created after an Act has come into effect. This can result in tenants who appear to have identical circumstances, but who have moved in at different times, having different tenancies, for example in the private rented sector where tenancies entered into after 1 December 2017 are generally private residential tenancies, and tenancies entered into before that date are generally assured tenancies. Advisers should also be aware of circumstances where transitional protection exists for people who have moved house but remained tenants of the same landlord. [2]

There are several pieces of legislation regulating security of tenure:

Private Housing (Tenancies) (Scotland) Act 2016

This Act introduced a new tenancy in the private sector. All new private rented tenancies created after 1st December 2017 are private residential tenancies. No new assured or short assured tenancies can be created from this date. Current assured and short assured tenancies, or older tenancy types, continue until they are correctly ended.

The private residential tenancy has no minimum term and no end date. It can only be ended by either by agreement or by the tenant giving notice or by the landlord based on one (or more) of 18 grounds. Rent can only be increased once in any twelve-month period and a specific procedure must be followed.

The Act also introduced new powers to introduce local rent caps in rent pressure areas.

Housing (Scotland) Act 2006

This Act introduced new rights for disabled tenants in private rented accommodation, improved the rights of mobile home occupiers, and strengthened tenants' rights to take action if their landlords refuse to carry out repairs. It also gave the Scottish Ministers the power to lay down enabling legislation to create tenancy deposit schemes.

Civil Partnership Act 2004

This Act amended existing housing legislation to give civil partners similar rights to those enjoyed by married couples. In some instances, the rights of cohabiting couples have been extended to cohabiting same-sex couples.

Homelessness (Scotland) Act 2003

This Act is mostly concerned with homelessness. However, section 12 established that a sheriff may not grant an order for the recovery of possession of an assured tenancy on ground 8 (three months' rent arrears), where the failure to pay rent has been the result of a delay or failure in the payment of Housing Benefit.

Housing (Scotland) Act 2001

The Housing (Scotland) Act 2001 introduced a single tenancy for all council and housing association tenants. On 2 September 2002 all existing social housing tenancies became Scottish secure tenancies. All Scottish Homes tenants have also since become Scottish secure tenants.

The Act also introduced the short Scottish secure tenancy with a lesser security of tenure than the Scottish secure tenancy. The short Scottish secure tenancy is intended for use as a probationary tenancy, for example where the tenant has a previous conviction for antisocial behaviour.

Housing (Scotland) Act 1988

This Act introduced two new tenancies for private sector tenants, the assured and short assured tenancy. These were the most common type of tenancy to be found in private sector housing but they are gradually being replaced by private residential tenancies.

Housing (Scotland) Act 1987

The Housing (Scotland) Act 1987 established the secure tenancy. All council tenants had secure tenancies until they were converted to Scottish secure tenancies in September 2002. A housing association tenant who moved into their tenancy prior to 2 January 1989 would also have had a secure tenancy until conversion. Although the secure tenancy no longer exists, tenants who were secure tenants retained some of their rights conferred by the 1987 Act.

Rent (Scotland) Act 1984

Regulated tenancies and Part VII Contracts were established under the Rent (Scotland) Act 1984. It has not been possible to create either of these tenancies since 1989 and very few remain in existence.

This Act remains important as it established basic rights for tenancies or occupancy agreements that do not fall under other tenancy regimes. It is a basic requirement that someone will be given four weeks' notice in writing before they can be asked to leave a dwelling that they are occupying and that they may not be evicted without a court order.

As well as primary legislation which consists of Acts, the Scottish Parliament also enacts subordinate legislation called Scottish Statutory Instruments containing regulations that are also part of statute law.

Scottish statutory instruments, often referred to as 'SSIs', are regulations written by the Scottish Ministers under the authority of an Act of the Scottish Parliament.

The Scottish Parliament often leaves the small details of statutory law to be worked out this way. For example, section 11(1)(e) of the Housing (Scotland) Act 2001 specifies that a tenancy will be a Scottish secure tenancy if it is created on or after a particular date by a particular landlord. The actual date and the types of landlord able to grant Scottish secure tenancies are however defined in a statutory instrument, the Housing (Scotland) Act 2001 (Scottish Secure Tenancy etc) Amendment Order 2002, SSI 2002/415.

These details can sometimes have considerable impact on the way the law affects tenants and it is important to be aware of where an Act allows for regulation by Scottish statutory instrument, of whether the regulation has been published, and whether any changes have occurred.

Common law is, in essence, law that is not referable to any legislative enactment. If someone wishes to argue in a court of law that a particular rule of law has been created by statute then it can be done by reference to a copy of the statute itself.

Although most residential tenancies are governed by statute, some are not. The rules that govern this kind of occupancy are found in the common law and the occupancy contract itself.

For example, although most public sector tenants are Scottish secure tenants, some fall outside this statutory regime. They are simply common law tenants whose landlord is a public sector body. The rules about such situations are found in the common law and the contract between the parties.

If someone wishes to argue that a particular rule is a rule of common law, the court will consider that question by reference to two types of authorities, namely Insititutional writings or case law.

The works of certain writers called institutional writers are accorded particular respect in Scotland. The main institutional writers on the general law of Scotland, and the notes of their most important works, are Stair (1681), Bankton (1751-53), Erskine (1773), and Bell (1804, 1829). At the time these works were written Scotland did not have a wealth of case law or a civil code (as did some other countries). Therefore, the institutional writings are considered to be valuable and authoritative statements of the law at a particular time. It is generally accepted that if the opinion of an institutional writer is not contradicted, it can be regarded as the law.

Reference to previous decided cases is commonplace in courts of law, and the judge or sheriff's decision in many cases can hinge on whether they consider that the case before them is the same as a case cited as precedent, or whether it can be distinguished. The notion of precedent was developed in the 19th century and means that the decisions of higher courts on a point are binding on lower courts considering the same point.

Although English case law is not binding on the Scottish courts it can be referred to, as it may be highly persuasive to the outcome of a Scottish case, particularly if the statutes referred to in the case are worded very similarly, for example much of the case law surrounding the definition of "homeless".