Types of tenure

Owner-occupation represents the most common form of residential occupancy in Scotland. Typically, a person will live in her/his own home but this will be secured by a mortgage.

The law of leases encompasses the law of residential tenancies. Having the status of tenant has an important and direct effect on the protection one enjoys as an occupier and the nature of the landlord's responsibilities. It is therefore important to determine whether there is a lease. Various kinds of tenancy exist. Each has its own set of rules, largely contained now in statute. The degree of security of tenure afforded to tenants varies greatly according to the type of tenancy in existence. Every tenant is entitled to a written statement of the name and address of their landlord. [1]

It is possible to be provided with a right to occupy residential accommodation but still not to be a tenant. These non-tenant situations are sometimes called licences in Scots law, but should be clearly distinguished from licences in English law. The difference between tenants and non-tenants can occasionally be difficult to define. Security of tenure for non-tenants is usually less than that of tenants. However, a certain amount of protection exists against many of these non-tenants being ejected without a court order. [2]

The legal status of hostel dwellers is potentially quite difficult to ascertain. In considering the status of the hostel dweller, relevant issues include:

• what the agreement says (relevant, although not conclusive)

• who provides the accommodation

• the level of support provided

• the level of control the individual has over her/his accommodation

• the length of time the person is permitted to stay there.

It should be noted that this list is not exhaustive and advisers should take further advice where they suspect a client may have been illegally evicted from a hostel. A recent court case has established that a hostel resident has a common law right to reasonable notice before s/he can be evicted. [3]

It is also possible to occupy accommodation without a right or permission to do so. It is potentially misleading to call such people trespassers. 'Trespass' in Scotland has a broad meaning and the term is often used in different contexts. A better term in Scotland is 'unlawful occupier'. Because the occupation here is unlawful, the position of such occupiers is very precarious. They can be ejected by the owner (or lawful occupier) without resort to the courts, [4] so long as the ejector does not break the criminal law, for example, by assault or breach of the peace. In some situations, when permission to occupy premises is withdrawn, it may be necessary to apply to the courts for a warrant for ejection. Squatting is not an option in Scotland.