Tenancies that cannot be short assured

If the requirements for the creation of a short assured tenancy have not been complied with when the tenancy was first entered into, it will by default assume full assured status. [1] For more information, please see the section on creating a short assured tenancy.

In addition, all the rules about tenancies that do not qualify as being assured apply to short assured tenancies. This includes the following situations:

Tenancies that began before 2 January 1989, or that are under a contract made before that date, cannot be short assured. [2] If there is 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, [3] the secure tenancy will have become an assured tenancy upon transfer, but cannot 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 short assured tenancies. [4] Such tenancies are very rare. 'Low rent' figures are stipulated by statutory instrument. The current figure is £6 per week. [5] 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 short assured. [6]

Licensed premises cannot be the subject of a short assured tenancy. [7] 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 a short assured tenancy.

Where the tenancy includes agricultural land exceeding two acres, the tenancy cannot be short assured, but is likely to be covered instead by the Agricultural Holdings (Scotland) Act 1991. [8]

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 short assured tenancies by the 'tenancies of agricultural land' provision, this provision also exempts agricultural holdings under two acres. [9]

Lettings to students, where the student is renting accommodation from their educational establishment, cannot be short assured tenancies. [10] This does not apply to students who rent from other parties, such as private landlords. Most educational establishments come under this exemption; central institutions, designated institutions, further education colleges, colleges of education and the Royal College of Surgeons of Edinburgh are all covered. [11]

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 or short assured. [12] 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. Historically, the courts have shown some ambivalence to such practices and have not always been keen to put a stop to them. [13] Given the availability of the short assured tenancy it is now unlikely that sham holiday lets will appear.

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

• 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 short 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 their 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).  [14]

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 her/his 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, s/he 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 short 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 short assured if the landlord is: [20]

• a local authority

• a fully mutual co-operative housing association

• a registered social landlord

• Scottish Water.

Local authorities have duties under homelessness legislation to provide homeless applicants with accommodation. Where they carry out such duties by having another party grant a tenancy on a temporary basis, the tenancy cannot be short assured. [21]

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 short assured. [22]

Tenancies granted to asylum seekers or their dependants under Section 4 or Part VI of the Immigration and Asylum Act 1999 will not be short assured. [23] 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 short assured tenancy can exist. [24] This is backed up by caselaw which states that no tenancy can exist as the relationship between parties is not that of a landlord and a tenant. [25]

Where the same landlord grants a new tenancy to an existing regulated tenant, [26] the tenant 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. [27]

Private residential tenancies are excluded from being short assured. [28]