Scottish secure tenant grants subtenancy

It is a term of every Scottish secure tenancy that the tenant shall not sublet the property without first getting written permission from the landlord. From 1 November 2019 the tenant must also have lived in the property for at least twelve months. [1]

If these conditions are met, the landlord's consent should not be unreasonably withheld, [2] and if the landlord fails to respond to a request to sublet within one month, s/he is deemed to have consented. [3]

A Scottish secure tenant who wishes to sublet their tenancy has to serve on the landlord a written application to obtain the landlord's consent. [4] The application does not have to follow a specific format but it should clearly state:

• that the tenant wishes to sublet their tenancy (not assign or renounce)

• the address of the property

• the name of the subtenant

• the date of the proposed subtenancy

• ideally that the request is made in terms of section 32 and schedule 5 of the Housing (Scotland) Act 2001.

If the tenant is to receive any payment for subletting the tenancy, details of the payment should also be provided as should details of the rent to be charged.

Local authorities may respond to the request by sending out a standard 'subletting' form. It should be noted that the one-month timescale continues to run from the date of the tenant's original request.

The landlord has to serve on the tenant written notice of her/his consent or refusal within one month of receiving the application. [5] Consent must not be withheld unreasonably. [6] If the landlord refuses to give consent then s/he must detail the reasons for that refusal. If the landlord fails to serve the written notice of consent/refusal within one month then s/he is deemed to have consented to the request to sublet. [7] If this happens then the 'head tenant' should write to the landlord stating that consent has effectively been given and that the subtenant will be living in the property from 'x' date. If the landlord refuses to accept this, then the client should be referred to a solicitor as a summary application may have to be made.

The landlord is entitled to refuse to consent to a sublet where it appears that a payment has been or will be given to the tenant for subletting the tenancy, unless the payment is a reasonable rent or a reasonable (and returnable) security deposit. [8]

The landlord may also consider

• whether or not the transaction is for financial gain, or to get round allocation rules [9]

• the creditworthiness of the subtenant [10]

• whether a notice of proceedings for possession has been served on the tenant [11]

• whether an order for recovery of possession has been made against the tenant [12]

• whether the transaction would lead to overcrowding [13]

• whether the house or flat is due to have work carried out on it that will affect the accommodation the subtenant will live in. [14]

If the landlord is a cooperative housing association, then the subtenant must be a member of the cooperative when the subtenancy begins. [15]

This is not an exhaustive list of factors that the landlord may consider; other factors may be looked at but always with the proviso that consent may not be unreasonably withheld.

If a tenant feels aggrieved by a refusal then s/he can go to court to have the landlord's decision looked at. A 'summary application' is made at the sheriff court that has jurisdiction over the district in which the house is situated. [16] A client wishing to raise a summary application should be referred to a solicitor who specialises in civil court work (lay representation is not allowed in this type of action). The deadline for making an application is 21 days from the notice of the decision.

If the sheriff considers that the refusal is unreasonable then s/he has to order the landlord to consent to the application. [17]

The subtenant of a Scottish secure tenant is not entitled to be a protected or statutory tenant or an assured tenant. [18] This enables the local authority or registered social landlord to retain control of their housing stock but leaves the subtenant in a very poor position.

For example, in one case subtenants who were granted a tenancy for the period of one year had to vacate the property at the end of this period, even though they were well thought of in the community and would experience financial hardship should they move into the private sector. [19] It was reasonable for the sheriff to grant a possession order because the local authority had to manage their housing stock and the subtenants right and title to reside in the property ceased once the period of one year had ended.

The head tenant must notify the landlord at the start of the subtenancy what rent is to be paid, and if a rent increase is proposed the landlord must again be told and has a power to veto that increase. [20]