Creating a regulated tenancy

In order to be regulated, a tenancy must meet the following conditions:

The tenancy must have been created before 2 January 1989

Apart from a few very limited expections, in order for a tenancy to be regulated it must have been created before 2 January 1989, i.e. before Part II of the Housing (Scotland) Act 1988 ('the 1988 Act') came into force. Regulated tenancies that were entered into before Part II of the 1988 Act came into force are still regulated tenancies, and are still protected by Part V of the Rent (Scotland) Act 1984. This entitles tenants in a regulated tenancy to have a "fair rent" registered. New regulated tenancies can be created in very limited circumstances. [1] These are:

• where the tenancy is entered into as a result of a contract made before 2 January 1989, [2] or

• where immediately before the tenancy was granted, the tenant was a regulated tenant (or joint tenant) of the same landlord [3] or

• where the tenant was entitled to alternative accommodation on the termination of a previous regulated tenancy.

A tenancy must exist

The requirements for the creation of a lease must be satisfied. Please see the section on leases for more information.

The tenancy must relate to a dwelling house

'Dwelling house' can include part of a house, for example a bedsit or single room. [4] A regulated tenancy can also exist where the property is being let for business, as well as residential use, where the resisdential element of the tenancy is not insignificant. [5]

The house must be let as a separate dwelling

The tenant must have exclusive occupation of some part of the dwelling, but this does not preclude the sharing of other parts of the accommodation with persons other than the landlord. For example, a tenancy in a house in multiple occupation where people pay rent for the exclusive use of their own bedroom, but share other facilities, may still be a regulated tenancy. Deciding whether exclusive occupation exists can be difficult: historically it has not been a major issue in Scotland although it is heavily litigated in England. If this became an issue in Scotland, it is likely that English litigation would be persuasive.

Possession must be maintained

This requirement differs depending on whether the tenancy is in its contractual or statutory period (see the page on types of regulated tenancy for definitions). The tenant need not be resident throughout the whole of the contractual tenancy, but when the contractual tenancy is terminated and a statutory tenancy arises, s/he must retain possession of the dwelling, or it will cease to be regulated. Where the tenancy is a joint tenancy only one of the tenants is required to satisfy this condition. [6]

It is possible for the protection of the Rent (Scotland) Act 1984 to apply to two properties, so long as both are occupied as homes. [7]

Companies may be protected tenants, but cannot be statutory tenants, because they are incapable of physically retaining possession. [8] Accordingly, where their protected (or contractual) tenancy is terminated, they cease to enjoy the protection of the Rent (Scotland) Act 1984.

Spouses who are not tenants have the right under the Matrimonial Homes (Family Protection) (Scotland) Act 1981 to continue to occupy the matrimonial home, despite the fact that their tenant-spouse has ceased to reside there. [9] Under the same legislation, cohabitants can apply to the sheriff court for the grant of equivalent occupancy rights. [10]

The Civil Partnership Act 2004 also makes provision for a civil partner who is the not the tenant to continue to occupy the family home if the civil partner who is the tenant ceases to reside there. [11]

Temporary absences should not stop a tenant from retaining possession of her/his home. Physical signs of occupation, length, reason for absence and intention to return, are important factors in arguing for continuous occupation. [12]