Tenancies that cannot be a Scottish secure tenancy

There remains a question mark about a tenant whose landlord is a registered social landlord registered in England. The Scottish Government's view is that the definition of registered social landlord that allows a Scottish secure tenancy to be offered does not encompass English registered social landlords. [1] These landlords would have to offer tenants an assured tenancy and would in effect be a private landlord, or register a subsidiary company with Communities Scotland in order to offer Scottish secure tenancies. For more information, please see the section on assured tenancies.

If a tenant is employed by their landlord, or by any local authority, the tenancy cannot be a Scottish secure tenancy if the tenant is required to occupy the property for the better performance of their duties. This requirement may be explicit in the contract of employment or implied. [2]

In McAuslane v Highland Council the Lands Tribunal affirmed the reasoning that in these cases there are two things to consider. Firstly, is the tenant required by the contract of employment to occupy the house. Secondly, is this required to allow the better performance of their duties. If the answer to both of these questions is yes, then the tenant cannot be a Scottish secure tenant. [3]

If the landlord is a local authority and the tenant is a police officer who has the right to occupy the property rent free, the tenancy cannot be a Scottish secure tenancy. In addition, if the tenant is a member of the fire brigade and is required by their employment contract to live near a particular fire station, the tenancy cannot be a Scottish secure tenancy. Where a property is let on a temporary basis prior to being required for either of these purposes, the tenancy will also be excluded from being a Scottish secure tenancy. [4]

In Campbell v Western Isles Council, a case relating to the similar exclusions on police and fire service accommodation which operated under the secure tenancy provisions of the Housing (Scotland) Act 1987, it was held that the fact that a let was temporary must be stated in the tenancy contract. Detailing the temporary nature of the let in a covering letter did not prevent a tenancy from becoming secure. [5]

If the property is let to students by a college or university, it cannot be a Scottish secure tenancy. This will be the case even if the student is studying with one institution and renting accommodation from another. [6]

A Scottish secure tenancy cannot be created if a tenant is temporarily occupying a property because work is being carried out on their usual accommodation. The tenant must be entitled to return to their original home after the completion of the work, either because this has been agreed with the landlord or by virtue of a court order. [7]

If a tenancy has been expressly let on a temporary basis to meet any duties owed to a homeless person, it will not be a Scottish secure tenancy if it is for a period that is less than six months. [8] In this situation, it will be an occupancy agreement. If the tenancy is for six months or more, it will be a short Scottish secure tenancy. [9]

There is no provision for the automatic conversion of these temporary tenancies to Scottish secure tenancies after a defined period of time.

A Scottish secure tenancy cannot be created where a tenancy has been granted for a term of less than 6 months to a person who is on probation or subject to supervision on release from prison. [10] In this situation it will be an occupancy agreement. If the accommodation is for six months or more it will be a short Scottish secure tenancy. [11]

If the tenant occupies the property by virtue of a shared ownership agreement, s/he cannot have a Scottish secure tenancy. [12] The legislation explicitly defines shared ownership for this purpose. [13]

There are a number of factors in relation to agricultural or business premises that would prevent the creation of a Scottish secure tenancy. These are:

• if a property is let together with agricultural land exceeding two acres;

• if a property is, or includes, premises which are used as a shop or office for business, trade or professional purposes;

• if a property is, or includes, premises to be used to sell alcohol. [14]

If the property is part of, or within the grounds of, a building that the landlord uses mainly for purposes other than the provision of accommodation and which consists mainly of non-housing accommodation, the tenancy cannot be a Scottish secure tenancy. This would apply to, for example, a janitor's house that was situated within a school boundary. [15]

If the landlord from another body leases the property, it cannot be let to a tenant as a Scottish secure tenancy if the lease specifically prevents this. [16] It is likely that any body that leases accommodation to the landlord will include this exclusion in the lease given the security of tenure and other rights enjoyed by Scottish secure tenants. If the lease contains no such prohibition, providing all of the other conditions are met, the landlord must offer a Scottish secure tenancy.

If a property is used to provide accommodation to someone receiving support as an asylum seeker under Part 6 of the Immigration and Asylum Act 1999, it is excluded from being a Scottish secure tenancy. [17]