Office of Public Sector Information
PART VIII continued
(1)Where it is shown to the satisfaction of the sheriff, or of a justice of the peace or magistrate, on sworn information in writing, that admission to premises specified in the information is reasonably required by a person employed by, or acting on the instructions of, a local authority for the purpose—
(a)of survey and examination to determine whether any powers under the foregoing provisions of this Part should be exercised in respect of the premises, or
(b)of ascertaining whether there has been a contravention of any regulations or direction made or given under the foregoing provisions of this Part,
then, subject to this section, the sheriff, justice or magistrate may by warrant under his hand authorise that person to enter on the premises for the purposes mentioned in paragraphs (a) and (b), or for such of those purposes as may be specified in the warrant.
(2)A sheriff, justice or magistrate shall not grant a warrant under this section unless he is satisfied—
(a)that admission to the premises has been refused and, except where the purpose specified in the information—
(i)is the survey and examination of premises to determine whether there has been a failure to comply with a notice under section 160 or section 161 or section 162, or
(ii)is to ascertain whether there has been a contravention of any regulations or direction made or given under the foregoing provisions of this Part,
that admission was sought after not less than 24 hours’ notice of the intended entry had been given to the occupier; or
(b)that an application for admission to the premises would defeat the object of the entry.
(3)Every warrant granted under this section shall continue in force until the purpose for which the entry is required has been satisfied.
(4)Any person who, in the exercise of a right of entry under this section, enters any premises which are unoccupied, or any premises the occupier of which is temporarily absent, shall leave the premises as effectually secured against trespassers as he found them.
(5)Any power of entry conferred by this section—
(a)shall include power to [F1enter], if need be, by force, and
(b)may be exercised by the person on whom it is conferred either alone or together with any other persons.
F1Word substituted (retrospectively) by Housing (Scotland) Act 1988 (c. 43, SIF 61), s. 72(1), Sch. 7 para. 7
If on an application made by any person required by a notice under the foregoing provisions of this Part to execute any works it appears to the sheriff that any other person having an estate or interest in the premises has unreasonably refused to give any consent required to enable the works to be executed, the sheriff may give the necessary consent in place of that other person.
(1)If the superior or owner of any lands and heritages gives notice to the local authority of his estate in those lands and heritages, the authority shall give to him notice of any proceedings taken by them in pursuance of the foregoing provisions of this Part in relation to those lands and heritages or any part thereof.
(2)Nothing in the foregoing provisions of this Part shall prejudice or interfere with the rights or remedies of any owner for the breach, non-observance or non-performance of any agreement or stipulation entered into by a lessee with reference to any house in respect of which a notice requiring the execution of works is served by a local authority under the foregoing provisions of this Part, or as respects which regulations made under section 156 are for the time being in force; and if any owner is obliged to take possession of a house in order to comply with any such notice the taking possession shall not affect his right to avail himself of any such breach, non-observance or non-performance which has occurred before he so took possession.
(1)A local authority shall take reasonable steps to identify the persons mentioned in subsection (2).
(2)Those persons are—
(a)the person having control of or managing premises;
(b)the person having an estate or interest in premises or any class of such persons,
upon whom the local authority require to serve a document under this Part.
(3)A person having an estate or interest in premises may for the purposes of this Part give notice to the local authority of his interest in the premises, and the authority shall enter the notice in their records.
In this Part—
(a)references to a lessee of a house and to a person to whom a house is let include references to any person who retains possession of the house by virtue of the M1Rent (Scotland) Act 1984 [F1or Part II of the Housing (Scotland) Act 1988] and not as being entitled to any tenancy; and
(b)references to a person having an estate or interest in a house include references to any person who retains possession of the house as mentioned in paragraph (a).
F1Words inserted by Housing (Scotland) Act 1988 (c. 43, SIF 61), s. 72(2), Sch. 9 para. 15
M11984 c. 58.
(1)A local authority may make a control order in respect of a house in their district which, or a part of which, is let in lodgings, or which is occupied by members of more than one family if—
(a)a notice has been served in respect of the house under section 160 or 161 (notices requiring the execution of works),
(b)a direction has been given in respect of the house under section 166 (direction limiting number of occupants),
(c)an order under section 157 is in force in respect of the house (order applying management code), or
(d)it appears to the local authority that the state or condition of the house is such as to call for the taking of action under any of those sections,
and if it appears to the local authority that the living conditions in the house are such that it is necessary to make the control order in order to protect the safety, welfare or health of persons living in the house.
(2)A local authority may exclude from the provisions of a control order any part of the house which, when the control order comes into force, is occupied by a person who has an estate or interest in the whole of the house, and, except where the context otherwise requires, references in this Part to the house do not include references to any part of the house so excluded from the provisions of the control order.
(3)A control order shall come into force when it is made, and as soon as practicable after making a control order the local authority shall, in exercise of the power conferred in the following provisions of this Part and having regard to the duties imposed on them by the said provisions, enter on the premises and take all such immediate steps as appear to them to be required to protect the safety, welfare or health of persons living in the house.
(4)As soon as practicable after making a control order the local authority shall—
(a)post a copy of the control order, together with a notice as described in subsection (5), in some position in the house where it is accessible to those living in the house; and
(b)serve a copy of the control order, together with such a notice, on every person who, to the knowledge of the local authority—
(i)was, immediately before the coming into force of the control order, a person managing the house or a person having control of the house, or
(ii)is an owner or lessee of the house or a person holding a heritable security over the house.
(5)The notice referred to in subsection (4) shall set out the effect of the control order in general terms, referring to the rights of appeal against control orders conferred by this Part and stating the principal grounds on which the local authority consider it necessary to make a control order.
(6)As soon as practicable after making a control order the local authority shall cause the control order to be recorded in the General Register of Sasines or registered in the Land Register, as the case may be.
(1)While a control order is in force the local authority—
(a)have the right to possession of the premises, and
(b)have the right to do, and to authorise others to do, in relation to the premises anything which any person having an estate or interest in the premises would, but for the making of the control order, be entitled to do, without incurring any liability to any such person except as expressly provided by this Part.
(2)Subject to subsection (3), the local authority may, notwithstanding that they do not, under this section, have an interest amounting to an estate in the premises, create an interest in the premises which, as near as may be, has the incidents of a lease and, subject to the provisions of section (4) and to any other express provision of this Part, any enactment or rule of law relating to landlords and tenants or leases shall apply in relation to any interest created under this section as if the local authority were the owner of the premises.
(3)Subject to the provisions of paragraphs 5(6) and 6(1) of Schedule 11, the local authority shall not, in exercise of the power conferred by this section, create any right in the nature of a lease or licence which is for a fixed term exceeding one month, [F1or] which is terminable by notice to quit (or an equivalent notice) of more than 4 weeks:
Provided that this subsection shall not apply to a right created with the consent in writing of the person or persons who would have power to create that right if the control order were not in force.
(4)On the coming into force of a control order any order under section 157, and any notice or direction under sections 160, 161, 162 or 166, shall cease to have effect as respects the house to which the control order applies, but without prejudice to any criminal liability incurred before the coming into force of the control order, or to the right of the local authority to recover any expenses incurred in carrying out any works.
(5)References in this Act or in any other enactment to housing accommodation provided or managed by a local authority shall not include references to any house which is subject to a control order, but this subsection shall not be taken as restricting the powers of acquiring land by agreement or compulsorily conferred on local authorities by Part I.
F1Word substituted (retrospectively) by Housing (Scotland) Act 1988 (c. 43, SIF 61), s. 72(1), Sch. 7 para. 8
(1)This section applies to a person who at the time a control order comes into force—
(a)is occupying any part of the house, and
(b)does not have an estate or interest in the whole of the house.
(2)Section 179 (general effect of control order) does not affect the rights or liabilities of such a person under any lease, licence or agreement, whether in writing or not, under which that person is occupying any part of the house at the time when the control order comes into force, and—
(a)any such lease, licence or agreement has effect, while the control order is in force, as if the local authority were substituted in it for any party to it who has an estate or interest in the house and who is not a person to whom this section applies; and
(b)any such lease continues to have effect as near as may be as a lease notwithstanding that the rights of the local authority, as substituted for the lessor, do not amount to an estate in the premises.
(3)Subject to the provisions of subsection (4) and to any other express provision of this Part, any enactment or rule of law relating to landlords and tenants or leases shall apply in relation to any lease to which the local authority become a party under this section as if the authority were the owner of the premises.
(4)Section 5 of the M1Rent (Scotland) Act 1984 (which excludes lettings by local authorities from being protected tenancies within the meaning of the Act) [F1and paragraph 11 of Schedule 4 to the Housing (Scotland) Act 1988 (which excludes lettings by local authorities from being assured tenancies within the meaning of the Act)] shall not apply to any lease or agreement under which a person to whom this section applies is occupying any part of the house, and if immediately before the control order came into force any person to whom this section applies was occupying part of the house under a protected or statutory tenancy, within the meaning of the Rent (Scotland) Act 1984 [F2or an assured tenancy, within the meaning of the Housing (Scotland) Act 1988,] nothing in this Part relating to control orders shall prevent the continuance of that [F3protected, statutory or assured] tenancy nor affect the continued operation of [F4those Acts] in relation to that [F3protected, statutory or assured] tenancy after the coming into force of the control order.
(5)So much of the regulations made under section 156 as imposes duties on persons who live in a house to which the regulations apply (regulations prescribing management code) also applies to persons who live in a house as respects which a control order is in force.
(6)Without prejudice to the rights conferred on the local authority by section 179, the authority and any person authorised in writing by them, shall have the right at all reasonable times, as against any person having an estate or interest in a house which is subject to a control order, to enter any part of the house for the purpose of—
(a)survey and examination, and
(b)carrying out any works.
(7)The rights conferred by subsection (6) shall, so far as reasonably required for the purpose of survey and examination of a part of a house subject to a control order, or for the purpose of carrying out any works in that part of a house, be exercisable as respects the part of the house which, by virtue of section 178(2), is not subject to the control order.
F1Words inserted by Housing (Scotland) Act 1988 (c. 43, SIF 61), s. 72(2), Sch. 9 para. 16(a)
F2Words inserted by Housing (Scotland) Act 1988 (c. 43, SIF 61), s. 72(2), Sch. 9 para. 16(b)
F3Words substituted by Housing (Scotland) Act 1988 (c. 43, SIF 61), s. 72(2), Sch. 9 para. 16(c)
F4Words substituted by Housing (Scotland) Act 1988 (c. 43, SIF 61), s. 72(2), Sch. 9 para. 16(d)
M11984 c. 58.
(1)Subject to this section, if on the date on which a control order comes into force there is any furniture in the house which a resident in the house has the right to use in consideration of periodical payments to the dispossessed proprietor (whether included in the rent payable by the resident or not), the right to possession of the furniture shall, on that date and as against all persons other than the resident, vest in the local authority and remain vested in the authority while the control order remains in force.
(2)The local authority may, on the application in writing of the person owning any furniture to which subsection (1) applies, by notice served on that person not less than 2 weeks before the notice takes effect, renounce the right to possession of the furniture conferred by subsection (1).
(3)In respect of the period during which the local authority have the right to possession of any furniture in pursuance of subsection (1), the authority shall be liable to pay to the dispossessed proprietor compensation in respect of the use of any furniture the right to possession of which vests under that subsection at such rate as the parties may agree or as may be determined by the rent assessment committee constituted under section 44 of the M1Rent (Scotland) Act 1984 or under any corresponding enactment repealed by that Act for the area in which the house is situated.
(4)If the local authority’s right to possession of any furniture conferred by subsection (1) is a right exercisable as against more than one person interested in the furniture, any such person may apply to the sheriff for an adjustment of the rights and liabilities of those persons as regards the furniture, and the sheriff may make an order for any such adjustment of rights and liabilities either unconditionally or subject to such terms and conditions (including terms or conditions with respect to the payment of money by any party to the proceedings to any other party to the proceedings by way of compensation, damages or otherwise) as he thinks just and equitable.
(5)Compensation due under this section—
(a)shall be payable by quarterly instalments, the first instalment being payable 3 months after the date when the control order comes into force;
(b)is to be considered as accruing due from day to day and shall be apportionable in respect of time accordingly.
(6)In this Part “dispossessed proprietor” means the person by whom the rents or other periodical payments to which a local authority become entitled on the coming into force of a control order would have been receivable but for the making of the control order, and the successors in title of that person; and in this section “furniture” includes fittings and other articles.
(1)The local authority shall—
(a)exercise the powers conferred on them by a control order so as to maintain proper standards of management in the house,
(b)take such action as is needed to remedy all the matters which they would have considered it necessary to remedy by the taking of action under any other provision of this Part if they had not made a control order.
(2)The local authority may fit out, furnish and supply any house subject to a control order with such furniture, fittings and conveniences as appear to them to be required.
(3)The local authority shall make reasonable provision for insurance of any premises subject to a control order, including any part of the premises which, by virtue of section 178(2), is excluded from the provisions of the control order, against destruction or damage by fire or other cause, and premiums paid for the insurance of the premises shall, for the purposes of the provisions of this Part, be treated as expenditure incurred by the local authority in respect of the premises.
(4)The local authority shall keep full accounts of their income and expenditure in respect of a house which is subject to a control order, and afford to the dispossessed proprietor, or any other person having an estate or interest in the house, all reasonable facilities for inspecting, taking copies of and verifying those accounts.
(5)While a control order is in force the local authority shall afford to the dispossessed proprietor, or any other person having an estate or interest in the house, any reasonable facilities requested by him for inspecting and examining the house.
(1)The local authority shall be liable to pay the dispossessed proprietor compensation in respect of the period during which the control order is in force at an annual rate of an amount equal to one half of the gross annual value for rating purposes of the house as shown in the valuation roll on the date when the control order comes into force.
(2)Compensation due under this section—
(a)shall be payable by quarterly instalments, the first instalment being payable 3 months after the date when the control order comes into force;
(b)is to be considered as accruing due from day to day and shall be apportionable in respect of time accordingly.
(3)If at the time when compensation under this section accrues due the estate or interest of the dispossessed proprietor is subject to any heritable security or charge, the compensation shall be deemed to be comprised in that heritable security or charge.
(4)For the purposes of the references in this section to the gross annual value of a house—
(a)where after the date on which the control order comes into force the valuation roll is altered so as to vary the gross annual value of the house or of the lands and heritages of which house forms part, and the alteration has effect from a date not later than the date on which the control order comes into force, compensation shall be payable under this section as if the gross annual value of the house or lands and heritages shown in the valuation roll on the date when the control order came into force had been the amount of the value shown on the roll as altered; and
(b)if the house forms part only of any lands and heritages, such proportion of the gross annual value shown in the valuation roll for those lands and heritages as may be agreed in writing between the local authority and the person claiming the compensation shall be the gross annual value of the house;
and any dispute arising under paragraph (b) shall be determined by the sheriff on the application of either party.
(5)If different persons are the dispossessed proprietors of different parts of any house, compensation payable under this section shall be apportioned between them in such manner as they may agree (or as may, in default of agreement, be determined by the sheriff on the application of any of such persons) according to the proportions of the gross annual value of the house properly attributable to the parts of the house in which they are respectively interested.
(6)In the application of this section to any lands and heritages whose net annual value is ascertained under subsection (8) of section 6 of the M1Valuation and Rating (Scotland) Act 1956 ( and for which there is therefore no gross annual value shown in the valuation roll)—
(a)in subsection (1), for the words “one half of the gross” there shall be substituted the words “0.625 of the net”, and
(b)in each of subsections (4) and (5), for the word “gross”, whenever it occurs, there shall be substituted the word “net”.
(1)After a control order has been made, the local authority shall prepare a management scheme and shall, not later than 8 weeks after the date on which the control order comes into force, serve a copy of the scheme on—
(a)every person who is to the knowledge of the authority—
(i)a dispossessed proprietor, or
(ii)an owner or lessee of the house, or a person holding a heritable security over the house, and
(b)on any other person on whom the local authority served a copy of the control order.
(2)Part I of Schedule 11 has effect with respect to the matters to be provided for in a management scheme and for related matters.
(3)This section does not affect the powers conferred on a local authority by section 179 and, accordingly, a local authority may carry out any works in a house which is subject to a control order whether or not particulars of those works have been included in a management scheme.
(1)Either the lessor or the lessee under any lease of premises which consist of or comprise a house which is subject to a control order, other than a lease to which section 180(2) applies, may apply to the sheriff for an order under this section.
(2)On any such application, the sheriff may make an order for the determination of the lease, or for its variation, and, in either case, either unconditionally or subject to such terms and conditions or subject to such terms and conditions (including terms or conditions with respect to the payment of money by any party to the proceedings to any other party to the proceedings by way of compensation, damages or otherwise) as the sheriff may think just and equitable to impose, regard being had to the respective rights, obligations and liabilities of the parties under the lease and to the other circumstances of the case.
(3)If on any such application the sheriff is satisfied that—
(a)if the lease is determined and control order is revoked the lessor will be in a position, and intends, to take all such action to remedy the condition of the house as the local authority consider would have to be taken in pursuance of the powers conferred on them under this Part (other than those relating to control orders); and
(b)the local authority intend, if the lease is determined, to revoke the control order,
the sheriff shall exercise the jurisdiction conferred by this section so as to determine the lease.
(1)Any person having an estate or interest in a house to which a control order relates, or, subject to subsection (2), any other person, may appeal to the sheriff against the control order at any time after the making of the control order, but not later than the expiry of a period of 6 weeks from the date on which a copy of the relevant scheme is served in accordance with section 184(1).
(2)The sheriff may, before entertaining an appeal by a person who had not, when he brought the appeal, an estate or interest in the house, require the appellant to satisfy the sheriff that he may be prejudiced by the making of the control order.
(3)The grounds of appeal are—
(a)that (whether or not the local authority have made an order or issued a notice or direction under sections 157, 160, 161 or 166) the state or condition of the house was not such as to call for the taking of action under any of those provisions;
(b)that it was not necessary to make the control order in order to protect the safety, welfare or health of persons living in the house;
(c)where part of the house was occupied by the dispossessed proprietor when the control order came into force, that it was practicable and reasonable for the local authority to exercise their powers under section 178(2) so as to exclude from the provisions of the control order a part of the house (or a greater part of the house than has been excluded);
(d)that the control order is invalid on the ground that any requirement of this Act has not been complied with or on the ground of some informality, defect or error in or in connection with the control order.
(4)In so far as an appeal under this section is based on the ground that the control order is invalid, the sheriff shall confirm the control order unless satisfied that interests of the appellant have been substantially prejudiced by the facts relied on by him.
(5)A control order shall, subject to the right of appeal conferred by this section, be final and conclusive as to any matter which could have been raised on any such appeal.
(6)Where a control order is revoked on an appeal under this section, the local authority shall as soon as practicable thereafter cause to be recorded in the General Register of Sasines or registered in the Land Register, as the case may be, a notice stating that the control order has been revoked as aforesaid.
(1)This section shall have effect if a control order is revoked by the sheriff on an appeal against the control order.
(2)If the local authority are in the course of carrying out any works in the house which, if a control order were not in force, the authority would have power to require some other person to carry out under the provisions of this Part or under any other enactment relating to housing or public health, and on the hearing of the appeal the sheriff is satisfied that the carrying out of the works could not be postponed until after the determination of the appeal because the works were urgently required for the sake of the safety, welfare or health of persons living in the house, or of other persons, the sheriff may suspend the revocation of the control order until the works have been completed.
(3)Part II of Schedule 11 has effect in relation to matters arising on the revocation of a control order on appeal.
(1)A control order shall cease to have effect on the expiry of a period of 5 years beginning with the date on which it came into force.
(2)The local authority may at any earlier time, either on an application under this section or on their own initiative, by order revoke a control order.
(3)Not less than 21 days before the local authority revoke a control order they shall serve notice of their intention to revoke the control order on the persons occupying any part of the house, and on every person who is to the knowledge of the authority an owner or lessee of the house or a person holding a heritable security over the house.
(4)If any person applies to the local authority requesting the authority to revoke a control order, and giving the grounds on which the application is made, the authority shall, if they refuse the application, inform the applicant of their decision and of their reason for rejecting the grounds advanced by the applicant.
(5)Where the local authority propose to revoke a control order on their own initiative and apply to the sheriff under this subsection, the sheriff may take any of the following steps, to take effect on the revocation of the control order, that is—
(a)approve the making of an order under section 157;
(b)approve the giving of a notice under section 160 or section 161 or section 162; or
(c)approve the giving of a direction under section 166;
and no appeal lies against any order or notice so approved.
Part III of Schedule 11 (which sets out the consequences of a control order ceasing to have effect) shall have effect for the purposes of this Part.
(1)In this Part of this Act, unless the context otherwise requires—
“dispossessed proprietor” has the meaning given by section 181(6);
“establishment charges” means, in relation to any expenditure incurred by a local authority, the proper addition to be made to that expenditure to take account of overhead expenditure incurred by the authority, and to allow for a proper return of capital;
“lease” includes a sublease or any tenancy, and any agreement for a lease, sublease or tenancy, and references to a lessor or to a lessee or to a person to whom a house is let shall be construed accordingly;
“licence” means any right or permission relating to land but not amounting to an estate or interest therein;
“person managing a house” has the meaning given to it by section 156(5);
“surpluses on revenue account as settled by the scheme” has the meaning given by paragraph 1(3) of Schedule 11.
(2)References in this Part to the net amount of rents or other payments received by a local authority from persons occupying a house are references to the amount of the rent and other payments received by the authority from those persons under leases or licences, or in respect of furniture to which section 181(1) applies, after deducting income tax paid or borne by the authority in respect of those rents and other payments.
(3)References in this Part to expenditure incurred in respect of a house subject to a control order include, in a case where the local authority—
(a)require persons living in a house to vacate their accommodation for any period while the local authority are carrying out works in the house, and
(b)defray all or any part of the expenses incurred by or on behalf of those persons removing from and returning to the house, or provide housing accommodation for those persons for any part of that period,
references to the sums so defrayed by the local authority, and to the net cost to the authority of so providing housing accommodation.
(4)For the purposes of this Part the withdrawal of an appeal shall be deemed the final determination thereof having the like effect as a decision dismissing the appeal.
Housing (Scotland) Act 1987