Head tenancy ends

The position of a subtenant under a Scottish secure tenancy is not good. Although a secure tenant can grant a subtenancy with the landlord's consent, the subtenant will not be a protected, assured or Scottish secure tenant. [1]

If the head (Scottish secure) tenancy is ended for whatever reason then the subtenant will have no security of tenure. Because s/he will be a common law tenant it will be relatively straightforward for the local authority or registered social landlord to recover possession. They will probably do this. If the local authority or registered social landlord takes no action to recover the property, the subtenant will arguably become a Scottish secure tenant her/himself with all the rights that implies, [2] thus bypassing the allocations policy of the local authority or registered social landlord. The local authority or registered social landlord would then have to have grounds to raise eviction proceedings against the new Scottish secure tenant.

When an assured head tenancy is ended because of a possession order granted by a sheriff, a lawful subtenant will become a direct tenant of the landlord on the same terms as his/her previous agreement with the head tenant. This means s/he will continue to have a tenancy on the same terms and conditions as before but will have a direct relationship with the landlord instead of the head tenant, [3] ie the subtenant becomes the head tenant. Landlords often overlook this point so it is important to check the history of the tenancy. This protection does not extend to subtenants where it is their actions that have led to the court order for eviction being granted. [4]

The protection applies to subtenants even where the head tenancy is excluded from being an assured tenancy because the rent is too low. [5]

If the head tenancy is ended a lawful subtenant is entitled to remain in the property as a statutory tenant of the landlord. [6] S/he will continue to have a tenancy on the same terms and conditions as before but will have a direct relationship with the landlord instead of the head tenant, ie the subtenant becomes the head tenant.

The protection applies to subtenants even where the head tenancy is excluded from being a protected tenancy because the rent is too low. [7]

Tenancy terminated by head tenant

Where the head tenant terminates their tenancy, the subtenant’s tenancy also ends. [8] However, providing the sub tenancy was:

• lawful, and

• meets the conditions of being a private residential tenancy then

A new private residential tenancy will be created directly between the head landlord and former subtenant. [9] This tenancy will have the same terms and conditions as the former sub tenancy, so for example the rent cannot be increased without the correct process being carried out.  

To check whether the sub tenancy was lawful see the page on subletting in private residential tenancies.

Tenancy ended as a result of eviction order

Where the head tenancy ends as a result of an eviction order the position is different.

• Where the ground is not one of the grounds relating to relating to conduct (grounds 1-9 and grounds 16-18) then the subtenancy will also end. [10]

• Where the ground is one of the conduct grounds (grounds 10-15) then the subtenant can continue to occupy the property, and will become a new tenant of the head landlord with the same terms and conditions as before, unless the eviction order specifically states that section 46(2) of the Act does not apply. [11] For example, this may occur where the eviction action had been raised based on misconduct on the part of the subtenant.

It should be noted that there is also scope for the head landlord to end the tenancy of only the subtenant via the serving of a notice to leave and eviction action. See the section on Private residential tenancies - repossession process for more information on this.