(1) A tenancy under which a house is let as a separate dwelling is for the purposes of this Act an assured tenancy if and so long as—
(a) the tenant or, as the case may be, at least one of the joint tenants is an individual; and
(b) the tenant or, as the case may be, at least one of the joint tenants occupies the house as his only or principal home; and
(c) the tenancy is not one which, by virtue of subsection (2) below, cannot be an assured tenancy.
(2) If and so long as a tenancy falls within any paragraph of Schedule 4 to this Act, it cannot be an assured tenancy; and in that Schedule “tenancy” means a tenancy under which a house is let as a separate dwelling.
(1) If, under a tenancy, a house is let together with other land, then, for the purposes of this Act—
(a) if and so long as the main purpose of the letting is the provision of a home for the tenant or, as the case may be, at least one of the joint tenants, the other land shall be treated as part of the house; and
(b) if and so long as the main purpose of the letting is not as mentioned in paragraph (a) above, the tenancy shall be treated as not being one under which a house is let as a separate dwelling.
(2) Nothing in subsection (1) above affects any question whether a tenancy is precluded from being an assured tenancy by virtue of any provision of Schedule 4 to this Act.
(1) Where a tenant has the exclusive occupation of any accommodation (in this section referred to as “the separate accommodation”) and—
(a) the terms as between the tenant and his landlord on which he holds the separate accommodation include the use of other accommodation (“the shared accommodation”) in common with another person or other persons, not being or including the landlord, and
(b) by reason only of the circumstances mentioned in paragraph (a) above, the separate accommodation would not, apart from this section, be a house let on an assured tenancy,
the separate accommodation shall be deemed to be a house let on an assured tenancy and the following provisions of this section shall have effect.
(2) While the tenant is in possession of the separate accommodation, any term of the tenancy terminating or modifying, or providing for the termination or modification of, his right to the use of any of the shared accommodation which is living accommodation shall be of no effect.
(3) Where the terms of the tenancy are such that, at any time during the tenancy, the persons in common with whom the tenant is entitled to the use of the shared accommodation could be varied or their number could be increased, nothing in subsection (2) above shall prevent those terms from having effect so far as they relate to any such variation or increase.
(4) In this section “living accommodation” means accommodation of such a nature that the fact that it constitutes or is included in the shared accommodation is sufficient, apart from this section, to prevent the tenancy from constituting an assured tenancy of a house.
(1) Where the tenant of a house has sublet a part but not the whole of the house, then, as against his landlord or any superior landlord, no part of the house shall be treated as excluded from being a house let on an assured tenancy by reason only that the terms on which any person claiming under the tenant holds any part of the house include the use of accommodation in common with other persons.
(2) Nothing in this section affects the rights against, and liabilities to, each other of the tenant and any person claiming under him, or of any two such persons.
(1) After the termination of a contractual tenancy which was an assured tenancy the person who, immediately before that termination, was the tenant, so long as he retains possession of the house without being entitled to do so under a contractual tenancy shall, subject to section 12 above and sections 18 and 32 to 35 below—
(a) continue to have the assured tenancy of the house; and
(b) observe and be entitled to the benefits of all the terms and conditions of the original contract of tenancy so far as they are consistent with this Act but excluding any—
(i) which makes provision for the termination of the tenancy by the landlord or the tenant; or
(ii) which makes provision for an increase in rent (including provision whereby the rent for a particular period will or may be greater than that for an earlier period) otherwise than by an amount specified in that contract or by a percentage there specified of an amount of rent payable under the tenancy,
and references in this Part of this Act to a “statutory assured tenancy” are references to an assured tenancy which a person is continuing to have by virtue of this subsection, subsection (1) of section 31 below, or section 3A of the [1984 c. 58.] Rent (Scotland) Act 1984.
(2) A statutory assured tenancy cannot be brought to an end by the landlord except by obtaining an order of the sheriff in accordance with the following provisions of this Part of this Act.
(3) Notwithstanding anything in the terms and conditions of tenancy of a house being a statutory assured tenancy, a landlord who obtains an order for possession of the house as against the tenant shall not be required to give him any notice to quit.
(1) In this section, in relation to a statutory assured tenancy “the former tenancy” means the tenancy on the termination of which the statutory assured tenancy arises.
(2) Not later than the first anniversary of the termination of the former tenancy, the landlord may serve on the tenant, or the tenant may serve on the landlord, a notice in the prescribed form—
(a) proposing terms of the statutory assured tenancy other than as to the amount of the rent different from those which have effect by virtue of section 16(1)(b) above; and
(b) proposing, if appropriate, an adjustment of the rent to take account of the proposed terms.
(3) Where a notice has been served under subsection (2) above—
(a) within the period of three months beginning on the date on which the notice was served on him, the landlord or the tenant, as the case may be, may refer the notice to a rent assessment committee under subsection (4) below in the prescibed form; and
(b) if the notice is not so referred, then, with effect from such date, not falling within the period of three months referred to in paragraph (a) above, as may be specified in the notice, the terms proposed in the notice shall become terms of the tenancy in substitution for any other terms dealing with the same subject matter and the amount of the rent shall be varied in accordance with any adjustment so proposed.
(4) Where a notice under subsection (2) above is referred to a rent assessment committee, the committee shall consider the terms proposed in the notice and shall determine whether those terms, or some other terms (dealing with the same subject matter as the proposed terms), are such as, in the committee’s opinion, might reasonably be expected to be found in a contractual assured tenancy of the house concerned, being a tenancy—
(a) which begins at the termination of the former tenancy; and
(b) which is granted by a willing landlord on terms which, except in so far as they relate to the subject matter of the proposed terms, are those of the statutory assured tenancy at the time of the committee’s consideration.
(5) Whether or not a notice under subsection (2) above proposes an adjustment of the amount of the rent under the statutory assured tenancy, where a rent assessment committee determine any terms under subsection (4) above, they shall, if they consider it appropriate, specify such an adjustment to take account of the terms so determined.
(6) In making a determination under subsection (4) above, or specifying an adjustment of an amount of rent under subsection (5) above, there shall be disregarded any effect on the terms or the amount of the rent attributable to the granting of a tenancy to a sitting tenant.
(7) Where a notice under subsection (2) above is referred to a rent assessment committee, then, unless the landlord and the tenant otherwise agree, with effect from such date as the committee may direct—
(a) the terms determined by the committee shall become terms of the statutory assured tenancy in substitution for any other terms dealing with the same subject matter; and
(b) the amount of the rent under the statutory assured tenancy shall be altered to accord with any adjustment specified by the committee,
but for the purposes of paragraph (b) above, the committee shall not direct a date earlier than the date on which the notice in question was referred to them.
(8) Nothing in this section requires a rent assessment committee to continue with a determination under subsection (4) above if the tenancy has been brought to an end by order of the sheriff under this Part of this Act or if the landlord and tenant give notice in writing that they no longer require such a determination.
(1) The sheriff shall not make an order for possession of a house let on an assured tenancy except on one or more of the grounds set out in Schedule 5 to this Act.
(2) The following provisions of this section have effect, subject to section 19 below, in relation to proceedings for the recovery of possession of a house let on an assured tenancy.
(3) If the sheriff is satisfied that any of the grounds in Part I of Schedule 5 to this Act is established then, subject to subsection (6) below, he shall make an order for possession.
(4) If the sheriff is satisfied that any of the grounds in Part II of Schedule 5 to this Act is established, he shall not make an order for possession unless he considers it reasonable to do so.
(5) Part III of Schedule 5 to this Act shall have effect for supplementing Ground 9 in that Schedule and Part IV of that Schedule shall have effect in relation to notices given as mentioned in Grounds 1 to 5 of that Schedule.
(6) The sheriff shall not make an order for possession of a house which is for the time being let on an assured tenancy, not being a statutory assured tenancy, unless—
(a) the ground for possession is Ground 2 or Ground 8 in Part I of Schedule 5 to this Act or any of the grounds in Part II of that Schedule, other than Ground 9 or Ground 10 or Ground 17; and
(b) the terms of the tenancy make provision for it to be brought to an end on the ground in question.
(7) Subject to the preceding provisions of this section, the sheriff may make an order for possession of a house on grounds relating to a contractual tenancy which has been terminated; and where an order is made in such circumstances, any statutory assured tenancy which has arisen on that termination shall, without any notice, end on the day on which the order takes effect.
(1) The sheriff shall not entertain proceedings for possession of a house let on an assured tenancy unless—
(a) the landlord (or, where there are joint landlords, any of them) has served on the tenant a notice in accordance with this section; or
(b) he considers it reasonable to dispense with the requirement of such a notice.
(2) The sheriff shall not make an order for possession on any of the grounds in Schedule 5 to this Act unless that ground is specified in the notice under this section; but the grounds specified in such a notice may be altered or added to with the leave of the sheriff.
(3) A notice under this section is one informing the tenant that—
(a) the landlord intends to raise proceedings for possession of the house on one or more of the grounds specified in the notice; and
(b) those proceedings will not be raised earlier than the expiry of the period of two weeks or two months (whichever is appropriate under subsection (4) below) from the date of service of the notice.
(4) The minimum period to be specified in a notice as mentioned in subsection (3)(b) above is—
(a) two months if the notice specifies any of Grounds 1, 2, 5, 6, 7, 9 and 17 in Schedule 5 to this Act (whether with or without other grounds); and
(b) in any other case, two weeks.
(5) The sheriff may not exercise the power conferred by subsection (1)(b) above if the landlord seeks to recover possession on Ground 8 in Schedule 5 to this Act.
(6) Where a notice under this section relating to a contractual tenancy—
(a) is served during the tenancy; or
(b) is served after the tenancy has been terminated but relates(in whole or in part) to events occurring during the tenancy,
the notice shall have effect notwithstanding that the tenant becomes or has become tenant under a statutory assured tenancy arising on the termination of the contractual tenancy.
(7) A notice under this section shall cease to have effect 6 months after the date on or after which the proceedings for possession to which it relates could have been raised.
(1) Subject to subsection (6) below, the sheriff may adjourn for such period or periods as he thinks fit, proceedings for possession of a house let on an assured tenancy.
(2) On the making of an order for possession of a house let on an assured tenancy or at any time before the execution of such an order, the sheriff, subject to subsection (6) below, may—
(a) sist or suspend execution of the order; or
(b) postpone the date of possession,
for such period or periods as he thinks fit.
(3) On any such adjournment as is referred to in subsection (1) above or on any such sist, suspension or postponement as is referred to in subsection (2) above, the sheriff, unless he considers that to do so would cause exceptional hardship to the tenant or would otherwise be unreasonable, shall impose conditions with regard to payment by the tenant of arrears of rent (if any) and rent or payments in respect of occupation after the termination of the tenancy and may impose such other conditions as he thinks fit.
(4) If any such conditions as are referred to in subsection (3) above are complied with, the sheriff may, if he thinks fit, recall any such order as is referred to in subsection (2) above.
(5) In any case where—
(a) at a time when proceedings are brought for possession of a house let on an assured tenancy, any person having occupancy rights under section 1 or 18 of the [1981 c. 59.] Matrimonial Homes (Family Protection) (Scotland) Act 1981 is in occupation of the house; and
(b) the assured tenancy is terminated as a result of those proceedings,
that person, so long as he or she remains in occupation, shall have the same rights in relation to, or in connection with, any such adjournment as is referred to in subsection (1) above or any such sist, suspension or postponement as is referred to in subsection (2) above, as he or she would have if those occupancy rights were not affected by the termination of the tenancy.
(6) This section does not apply if the sheriff is satisfied that the landlord is entitled to possession of the house on the ground specified in section 33(1) of this Act or on any of the grounds in Part I of Schedule 5 to this Act.
(1) This section applies in a case falling within subsection (1) of section 14 above and expressions used in this section have the same meaning as in that section.
(2) Without prejudice to the enforcement of any order made under subsection (3) below, while the tenant is in possession of the separate accommodation, no order shall be made for possession of any of the shared accommodation, whether on the application of the immediate landlord of the tenant or on the application of any person from whom that landlord derives title, unless a like order has been made, or is made at the same time, in respect of the separate accommodation; and the provisions of section 17 above shall have effect accordingly.
(3) On the application of the landlord, the sheriff may make such order as he thinks just either—
(a) terminating the right of the tenant to use the whole or any part of the shared accommodation other than living accommodation; or
(b) modifying his right to use the whole or any part of the shared accommodation, whether by varying the persons or increasing the number of persons entitled to the use of that accommodation, or otherwise.
(4) No order shall be made under subsection (3) above so as to effect any termination or modification of the rights of the tenant which, apart from section 14(2) above, could not be effected by or under the terms of the tenancy.
(1) Where the sheriff makes an order for possession of a house let on an assured tenancy on Ground 6 or Ground 9 in Schedule 5 to this Act (but not on any other ground), the landlord shall pay to the tenant a sum equal to the reasonable expenses likely to be incurred by the tenant in removing from the house.
(2) Any question as to the amount payable by the landlord to a tenant by virtue of subsection (1) above shall be determined by agreement between the landlord and the tenant or, in default of agreement, by the sheriff.
(1) Subject to subsection (2) below, it shall be an implied term of every assured tenancy that, except with the consent of the landlord, the tenant shall not—
(a) assign the tenancy (in whole or in part); or
(b) sublet or part with possession of the whole or any part of the house let on the tenancy.
(2) Subsection (1) above does not apply if, under the terms of the tenancy, there is provision prohibiting or permitting (whether absolutely or conditionally) assignation, subletting or parting with possession by the tenant.
(1) For the purpose of securing an increase in the rent under an assured tenancy, the landlord may serve on the tenant a notice in the prescribed form proposing a new rent to take effect—
(a) if the tenancy was a contractual tenancy (whether or not renewed by operation of tacit relocation), immediately after its termination; or
(b) if the tenancy was not such a contractual tenancy, at any time during the tenancy,
but not earlier than the expiry of the minimum period after the date of service of the notice.
(2) The minimum period referred to in subsection (1) above is—
(a) if the assured tenancy is for 6 months or more, 6 months;
(b) if the assured tenancy is for less than 6 months, the duration of the tenancy or one month (whichever is the longer).
(3) Where a notice is served under subsection (1) above, a new rent specified in the notice shall take effect as mentioned in the notice unless, before the beginning of the period to which the new rent relates—
(a) the tenant refers the notice to a rent assessment committee in the prescribed form; or
(b) the landlord and the tenant agree on a variation of the rent which is different from that proposed in the notice or agree that the rent should not be varied.
(4) Where a notice is served under subsection (1) above but the rent under the tenancy has previously been increased (whether by agreement or by virtue of a notice under subsection (1) above or a determination under section 25 below) the new rent shall take effect not earlier than the first anniversary of the date on which that increase took effect.
(5) Nothing in this section affects the operation of any term of a tenancy which makes provision for an increase in rent (including provision whereby the rent for a particular period will or may be greater than that for an earlier period) by an amount specified in the tenancy contract or by a percentage there specified of an amount of rent payable under the tenancy.
(1) Where, under subsection (3)(a) of section 24 above, a tenant refers to a rent assessment committee a notice under subsection (1) of that section, the committee shall determine the rent at which, subject to subsections (2) and (3) below, the committee consider that the house might reasonably be expected to be let in the open market by a willing landlord under an assured tenancy—
(a) which begins at the beginning of the period to which the new rent specified in the notice relates;
(b) the terms of which (other than those relating to rent) are the same as those of the tenancy to which the notice relates; and
(c) in respect of which the same notices, if any, have been given under any of Grounds 1 to 5 of Schedule 5 to this Act, as have been given (or have effect as if given) in relation to the tenancy to which the notice relates.
(2) In making a determination under this section, there shall be disregarded any effect on the rent attributable to—
(a) the granting of a tenancy to a sitting tenant;
(b) an improvement carried out by the tenant or a predecessor in title of his unless the improvement was carried out in pursuance of the terms of the tenancy; and
(c) a failure by the tenant to comply with any terms of the tenancy.
(3) In this section “rent” includes any sums payable by the tenant to the landlord on account of the use of furniture or for services, whether or not those sums are separate from the sums payable for the occupation of the house concerned or are payable under separate agreements.
(4) Where any rates in respect of the house concerned are borne by the landlord or a superior landlord, the rent assessment committee shall make their determination under this section as if the rates were not so borne.
(5) In any case where—
(a) a rent assessment committee have before them at the same time the reference of a notice under section 17(2) above relating to a tenancy (in this subsection referred to as “the section 17 reference”) and the reference of a notice under section 24(1) above relating to the same tenancy (in this subsection referred to as “the section 24 reference”); and
(b) the date specified in the notice under section 17(2) above is not later than the first day of the new period specified in the notice under section 24(1) above; and
(c) the committee propose to hear the two references together,
the committee shall make a determination in relation to the section 17 reference before making their determination in relation to the section 24 reference and, accordingly, in such a case the reference in subsection (1)(b) above to the terms of the tenancy to which the notice relates shall be construed as a reference to those terms as varied by virtue of the determination made in relation to the section 17 reference.
(6) Where a notice under section 24(1) above has been referred to a rent assessment committee, then, unless the landlord and the tenant otherwise agree, the rent determined by the committee (together with, in a case where subsection (4) above applies, the appropriate amount in respect of rates) shall be the rent under the tenancy with effect from the beginning of the period to which the new rent specified in the notice relates or, if it appears to the rent assessment committee that that would cause undue hardship to the tenant, with effect from such date as the committee may direct (being a date after the beginning of that period but not after the date when the committee determined the rent).
(7) Nothing in this section requires a rent assessment committee to continue with their determination of a rent for a house if the tenancy has been brought to an end by order of the sheriff under this Part of this Act or if the landlord and tenant give notice in writing that they no longer require such a determination.
(8) Nothing in this section or section 24 above affects the right of the landlord and the tenant under an assured tenancy to vary by agreement any term of the tenancy (including a term relating to rent).
It shall be an implied term of every assured tenancy that the tenant shall afford to the landlord reasonable access to the house let on the tenancy and all reasonable facilities for executing therein any repairs which the landlord is entitled to execute.
Sections 82, 83 and 86 to 90 of the [1984 c. 58.] Rent (Scotland) Act 1984 (which make it an offence to require premiums and advance payment of rent in respect of protected tenancies and make related provision) shall apply in relation to assured tenancies as they apply in relation to protected tenancies (including protected tenancies which are regulated tenancies), but with the following modifications—
(a) section 83(5) shall not apply; and
(b) section 88(1) shall apply as if for the references to 12th August 1971 there were substituted references to the date of commencement of this section.
(1) If the sheriff makes an order for possession of a house from a tenant nothing in the order shall affect the right of any sub-tenant to whom the house or any part of it has been lawfully sublet on an assured tenancy before the commencement of the proceedings to retain possession by virtue of this Part of this Act, nor shall the order operate to give a right to possession as against any such sub-let.
(2) Where an assured tenancy of a house is terminated, either as a result of an order for possession or for any other reason, any sub-tenant to whom the house or any part of it has been lawfully sublet shall, subject to the provisions of this Act, be deemed to become the tenant of the landlord on the same terms as he would have held from the tenant if the tenant’s assured tenancy had continued.
(3) A tenancy which, but for paragraph 2 of Schedule 4 to this Act, would have been an assured tenancy shall be treated for the purposes of subsection (2) above as an assured tenancy.
No diligence shall be done in respect of the rent of any house let on an assured tenancy except with the leave of the sheriff; and the sheriff shall, with respect to any application for such leave, have the same powers with respect to adjournment, sist, suspension, postponement and otherwise as are conferred by section 20 above in relation to proceedings for possession of such a house.
(1) It shall be the duty of the landlord under an assured tenancy (of whatever duration)—
(a) to draw up a document stating (whether expressly or by reference) the terms of the tenancy;
(b) to ensure that it is so drawn up and executed that it is probative or holograph of the parties; and
(c) to give a copy of it to the tenant.
(2) On summary application by a tenant under an assured tenancy, the sheriff shall by order—
(a) where it appears to him that the landlord has failed to draw up a document which fairly reflects the existing terms of the tenancy, draw up such a document or, as the case may be, adjust accordingly the terms of such document as there is; and
(b) in any case, declare that the document (as originally drawn up or, where he has drawn it up or adjusted it, as so drawn up or adjusted) fairly reflects the terms of the assured tenancy;
and, where the sheriff has made such a declaration in relation to a document which he has drawn up or adjusted, it shall be deemed to have been duly executed by the parties as so drawn up or adjusted.
(3) A tenant shall not be required to make payment in respect of anything done under subsection (1) above.
(4) Where, under an assured tenancy, rent is payable weekly, it shall be the duty of the landlord to provide a rent book.
(5) A rent book shall contain such notices which shall be in such form and shall relate to such matters as may be prescribed and otherwise shall comply with such requirements as may be prescribed.
(6) If, at any time, the landlord fails to comply with any requirement imposed by or under subsection (4) or (5) above he and any person who on his behalf demands or receives rent in respect of the tenancy shall be liable, on summary conviction, to a fine not exceeding level 4 on the standard scale.
(7) Where an offence under subsection (6) above committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, a director, manager, secretary or other similar officer of the body corporate, or a person purporting to act in any such capacity, he, as well as the body corporate, is guilty of an offence and liable to be proceeded against and punished accordingly.
(1) In any case where—
(a) the sole tenant under an assured tenancy dies; and
(b) immediately before the death the tenant’s spouse was occupying the house as his or her only or principal home; and
(c) the tenant was not himself a successor as explained in subsection (2) or (3) below,
the tenant’s spouse shall, as from the death and for so long as he or she retains possession of the house without being entitled to do so under a contractual tenancy, be entitled to a statutory assured tenancy of the house.
(2) For the purposes of this section, a tenant was a successor in relation to a tenancy—
(a) if the tenancy had become vested in him either by virtue of this section or under the will or intestacy of a previous tenant; or
(b) if he was a statutory assured tenant by virtue of section 3A of the [1984 c. 58.] Rent (Scotland) Act 1984; or
(c) if at some time before the tenant’s death the tenancy was a joint tenancy held by him and one or more other persons and, prior to his death, he had become the sole tenant by survivorship; or
(d) in the case of a tenancy (hereinafter referred to as “the new tenancy”) which was granted to him (alone or jointly with others) if—
(i) at some time before the grant of the new tenancy he was, by virtue of paragraph (a), (b) or (c) above, a successor to an earlier tenancy of the same or substantially the same house as is let under the new tenancy; and
(ii) at all times since he became such a successor he has been a tenant (alone or jointly with others) of the house which is let under the new tenancy or of a house which is substantially the same as that house.
(3) No order for possession under Ground 7 of Schedule 5 to this Act shall be made—
(a) in relation to a case to which this section relates by virtue of subsection (1) above; or
(b) where the tenant’s spouse succeeds to the tenancy under the will or intestacy of the tenant.
(4) For the purposes of this section a person who was living with the tenant at the time of the tenant’s death as his or her wife or husband shall be treated as the tenant’s spouse.
(1) A short assured tenancy is an assured tenancy—
(a) which is for a term of not less than six months; and
(b) in respect of which a notice is served as mentioned in subsection (2) below.
(2) The notice referred to in subsection (1)(b) above is one which—
(a) is in such form as may be prescribed;
(b) is served before the creation of the assured tenancy;
(c) is served by the person who is to be the landlord under the assured tenancy (or, where there are to be joint landlords under the tenancy, is served by a person who is to be one of them) on the person who is to be the tenant under that tenancy; and
(d) states that the assured tenancy to which it relates is to be a short assured tenancy.
(3) Subject to subsection (4) below, if, at the ish of a short assured tenancy—
(a) it continues by tacit relocation; or
(b) a new contractual tenancy of the same or substantially the same premises comes into being under which the landlord and the tenant are the same as at that ish,
the continued tenancy or, as the case may be, the new contractual tenancy shall be a short assured tenancy, whether or not it fulfils the conditions in paragraphs (a) and (b) of subsection (1) above.
(4) Subsection (3) above does not apply if, before the beginning of the continuation of the tenancy or, as the case may be, before the beginning of the new tenancy, the landlord or, where there are joint landlords, any of them serves written notice in such form as may be prescribed on the tenant that the continued or new tenancy is not to be a short assured tenancy.
(5) Section 25 above shall apply in relation to a short assured tenancy as if in subsection (1) of that section the reference to an assured tenancy were a reference to a short assured tenancy.