PART II continued
(1) Without prejudice to any right of the landlord under a short assured tenancy to recover possession of the house let on the tenancy in accordance with sections 12 to 31 of this Act, the sheriff shall make an order for possession of the house if he is satisfied—
(a) that the short assured tenancy has reached its ish;
(b) that tacit relocation is not operating;
(c) that no further contractual tenancy (whether a short assured tenancy or not) is for the time being in existence; and
(d) that the landlord (or, where there are joint landlords, any of them) has given to the tenant notice stating that he requires possession of the house.
(2) The period of notice to be given under subsection (1)(d) above shall be—
(i) if the terms of the tenancy provide, in relation to such notice, for a period of more than two months, that period;
(ii) in any other case, two months.
(3) A notice under paragraph (d) of subsection (1) above may be served before, at or after the termination of the tenancy to which it relates.
(4) Where the sheriff makes an order for possession of a house by virtue of subsection (1) above, any statutory assured tenancy which has arisen as at that ish shall end (without further notice) on the day on which the order takes effect.
(1) Subject to subsection (2) and section 35 below, the tenant under a short assured tenancy may make an application in the prescribed form to a rent assessment committee for a determination of the rent which, in the committee’s opinion, the landlord might reasonably be expected to obtain under the short assured tenancy.
(2) No application may be made under this section if the rent payable under the tenancy is a rent previously determined under this section or section 25 above.
(3) Where an application is made to a rent assessment committee under subsection (1) above with respect to the rent under a short assured tenancy, the committee shall not make such a determination as is referred to in that subsection unless they consider—
(a) that there is a sufficient number of similar houses in the locality let on assured tenancies (whether short assured tenancies or not); and
(b) that the rent payable under the short assured tenancy in question is significantly higher than the rent which the landlord might reasonably be expected to be able to obtain under the tenancy, having regard to the level of rents payable under the tenancies referred to in paragraph (a) above.
(4) Where, on an application under this section, a rent assessment committee make a determination of a rent for a short assured tenancy—
(a) the determination shall have effect from such date as the committee may direct, not being earlier than the date of the application;
(b) if at or after the time when the determination takes effect, the rent which, apart from this paragraph, would be payable under the tenancy exceeds the rent so determined, the excess shall be irrecoverable from the tenant; and
(c) no further new rent for a tenancy of the house shall take effect under section 24(3) or 25 above until after the first anniversary of the date on which the determination takes effect.
(5) Subsections (3), (4) and (7) of section 25 above apply in relation to a determination of rent under this section as they apply in relation to a determination under that section.
(1) If the Secretary of State by order so provides, section 34 above shall not apply in such cases or to tenancies of houses in such areas or in such other circumstances as may be specified in the order.
(2) No order shall be made under this section unless a draft of the order has been laid before, and approved by a resolution of, each House of Parliament.
(1) This section applies if, at any time after 3rd December 1987, a landlord or any person acting on his behalf unlawfully deprives the residential occupier of any premises of his occupation of the whole or part of the premises.
(2) This section also applies if, at any time after 6th July 1988, a landlord or any person acting on his behalf—
(a) attempts unlawfully to deprive the residential occupier of any premises of his occupation of the whole or part of the premises; or
(b) knowingly or having reasonable cause to believe that the conduct is likely to cause the residential occupier of any premises—
(i) to give up his occupation of the premises or any part thereof; or
(ii) to refrain from exercising any right or pursuing any remedy in respect of the premises or part thereof,
does acts calculated to interfere with the peace or comfort of the residential occupier or members of his household, or persistently withdraws or withholds services reasonably required for the occupation of the premises as a residence,
and, as a result, the residential occupier gives up his occupation of the premises as a residence.
(3) Subject to the following provisions of this section, where this section applies, the landlord shall, by virtue of this section, be liable to pay to the former residential occupier, in respect of his loss of the right to occupy the premises in question as his residence, damages assessed on the basis set out in section 37 below.
(4) Any liability arising by virtue of subsection (3) above—
(a) shall be in the nature of a liability in delict; and
(b) subject to subsection (5) below, shall be in addition to any liability arising apart from this section (whether in delict, contract or otherwise).
(5) Nothing in this section affects the right of a residential occupier to enforce any liability which arises apart from this section in respect of his loss of the right to occupy premises as his residence; but damages shall not be awarded both in respect of such a liability and in respect of a liability arising by virtue of this section on account of the same loss.
(6) No liability shall arise by virtue of subsection (3) above if—
(a) before proceedings are begun to enforce the liability, the former residential occupier is reinstated in the premises in question in such circumstances that he becomes again the residential occupier of them; or
(b) at the request of the former residential occupier, the sheriff makes an order as a result of which he is reinstated as mentioned in paragraph (a) above.
(7) In proceedings to enforce a liability arising by virtue of subsection (3) above, it shall be a defence for the defender to prove that he believed, and had reasonable cause to believe—
(a) that the residential occupier had ceased to reside in the premises in question at the time when he was deprived of occupation as mentioned in subsection (1) above or, as the case may be, when the attempt was made or the acts were done as a result of which he gave up his occupation of those premises; or
(b) that, where the liability would otherwise arise by virtue only of the withdrawal or withholding of services, he had reasonable grounds for withdrawing or withholding the services in question.
(8) In this section—
(a) “residential occupier”, in relation to any premises, means a person occupying the premises as a residence whether under a contract or by virtue of any enactment or rule of law giving him the right to remain in occupation or restricting the right of any other person to recover possession of the premises;
(b) “the right to occupy”, in relation to a residential occupier, includes any restriction on the right of another person to recover possession of the premises in question;
(c) “former residential occupier”, in relation to any premises, means the person who was the residential occupier until he was deprived of or gave up his occupation as mentioned in subsection (1) or subsection (2) above (and, in relation to a former residential occupier, “the right to occupy” and “landlord” shall be construed accordingly).
(1) The basis for the assessment of damages referred to in section 36(3) above is the difference in value, determined as at the time immediately before the residential occupier ceased to occupy the premises in question as his residence, between—
(a) the value of the landlord’s interest determined on the assumption that the residential occupier continues to have the same right to occupy the premises as before that time; and
(b) the value of the landlord’s interest determined on the assumption that the residential occupier has ceased to have that right.
(2) For the purposes of the valuations referred to in subsection (1) above, it shall be assumed—
(a) that the landlord is selling his interest in the premises on the open market to a willing buyer;
(b) that neither the residential occupier nor any member of his family wishes to buy; and
(c) that it is unlawful to carry out any substantial development of any of the land in which the landlord’s interest subsists or to demolish the whole or part of any building on that land.
(3) Subsection (8) of section 36 above applies in relation to this section as it applies in relation to that.
(4) Section 83 of the [1987 c. 26.] Housing (Scotland) Act 1987 (meaning of “members of a person’s family”) applies for the purposes of subsection (2)(b) above.
(5) The reference in subsection (2)(c) above to substantial development of any of the land in which the landlord’s interest subsists is a reference to any development other than—
(a) development for which planning permission is granted by a general development order for the time being in force and which is carried out so as to comply with any condition or limitation subject to which planning permission is so granted; or
(b) a change of use resulting in a building on the land or any part of such a building being used as, or as part of, one or more dwelling-houses;
and in this subsection “general development order” has the same meaning as in section 40(3) of the [1972 c. 52.] Town and Country Planning (Scotland) Act 1972 and other expressions have the same meaning as in that Act.
In section 22 of the [1984 c. 58.] Rent (Scotland) Act 1984 (unlawful eviction and harassment of occupier) after subsection (2) there shall be inserted the following subsections—
“(2A) The landlord of any premises or an agent of the landlord shall be guilty of an offence if—
(a) he does acts calculated to interfere with the peace or comfort of the residential occupier or members of his household; or
(b) subject to subsection (2B) below, he persistently withdraws or withholds services reasonably required for the occupation of the premises in question as a residence,
and (in either case) he knows, or has reasonable cause to believe, that that conduct is likely to cause the residential occupier to give up the occupation of the whole or part of the premises or to refrain from exercising any right or pursuing any remedy in respect of the whole or part of the premises.
(2B) A person shall not be guilty of an offence under subsection (2A) above by reason only of conduct falling within paragraph (b) of that subsection if he proves that he had reasonable grounds for withdrawing or withholding the services in question.”.
(1) In subsection (1) of section 23 of the Rent (Scotland) Act 1984 (prohibition of eviction without due process of law) before the word “it” there shall be inserted the words “subject to section 23A,”.
(2) After subsection (2) of that section there shall be inserted the following subsection—
“(2A) Subsections (1) and (2) above apply in relation to any premises occupied (whether exclusively or not) as a dwelling other than under a tenancy as they apply in relation to premises let as a dwelling under a tenancy, and in those subsections the expressions “let” and “tenancy” shall be construed accordingly.”.
(3) In section 24 of the Rent (Scotland) Act 1984 (special provisions for agricultural employees) after subsection (2) there shall be inserted the following subsection—
“(2A) In accordance with section 23(2A) above, any reference in subsections (1) and (2) above to the tenant under the former tenancy includes a reference to the person having a right to occupy premises as a dwelling otherwise than under a tenancy, being a right which has come to an end; and in the following provisions of this section the expressions “tenancy” and “rent” and any other expressions referable to a tenancy shall be construed accordingly.”.
After section 23 of the [1984 c. 58.] Rent (Scotland) Act 1984 there shall be inserted the following section—
(1) Nothing in section 23 or 24 of this Act applies to a tenancy or right of occupancy if—
(a) under its terms the occupier has the use of any accommodation in common with the owner or a member of his family (whether or not in common with other persons); and
(b) immediately before the tenancy or right was granted and at all times since then the owner occupied as his only or principal home premises of which the whole or part of the accommodation referred to in paragraph (a) above formed part.
(2) In subsection (1) above—
(a) “accommodation” includes neither an area used for storage nor a staircase, passage, corridor or other means of access;
(b) “owner” means, in relation to a tenancy, the landlord and, in relation to a right to occupy, the person granting it, and in any case where there are joint landlords or grantors any one of them shall be regarded as the “owner”; and
(c) “occupier” means, in relation to a tenancy, the tenant and, in relation to a right to occupy, its grantee;
and section 83 of the [1987 c. 26.] Housing (Scotland) Act 1987 shall apply to determine whether a person is for the purposes of subsection (1) above a member of another’s family as it applies for the purposes of that Act.
(3) Nothing in section 23 or 24 of this Act applies to a tenancy or right of occupancy if it was granted as a temporary expedient to a person who entered the premises in question or any other premises without right or title (whether or not before the beginning of that tenancy or grant of that right another tenancy or right to occupy the premises or any other premises had been granted to him).
(4) Nothing in section 23 or 24 of this Act applies to a tenancy or right of occupancy if it confers on the tenant or occupier the right to occupy the premises for a holiday only.
(5) Nothing in section 23 or 24 of this Act applies to a right of occupancy which confers rights of occupation in a hostel, within the meaning of the Housing (Scotland) Act 1987, which is provided by—
(a) a local authority within the meaning of the [1973 c. 65.] Local Government (Scotland) Act 1973 or a joint board or joint committee within the meaning of that Act;
(b) a development corporation within the meaning of the [1968 c. 16.] New Towns (Scotland) Act 1968;
(c) an urban development corporation within the meaning of Part XVI of the [1980 c. 65.] Local Government, Planning and Land Act 1980;
(d) the Scottish Special Housing Association;
(e) Scottish Homes;
(f) a registered housing association, within the meaning of the [1985 c. 69.] Housing Associations Act 1985; or
(g) any other person who is, or who belongs to a class of person which is, specified in an order made by the Secretary of State.
(6) The power to make an order under subsection (5)(g) above shall be exercisable by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.”.
(1) The Secretary of State may by order repeal sections 33 (phasing of rent increases) and 58 (phasing of progression to registered rent) of the [1984 c. 58.] Rent (Scotland) Act 1984.
(2) An order under subsection (1) above may amend any enactment (including this Act).
(3) No order under subsection (1) above shall be made unless a draft of it has been laid before and approved by a resolution of each House of Parliament.
(4) In the said section 33, in subsection (1) for the words “of 12 months” in both places where they occur there shall be substituted the words “specified in the order”.
(5) In the said section 58—
(a) in subsections (3) and (4), at the end there shall be added the words “or for such other period as the Secretary of State may by order specify”;
(b) after subsection (7) there shall be inserted the following subsection—
“(7A) An order under subsections (3) or (4) above shall be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament and may contain such supplementary or incidental material as the Secretary of State thinks fit.”.
(1) A tenancy which begins on or after the commencement of this section cannot be a protected tenancy, unless—
(a) it is entered into in pursuance of a contract made before the commencement of this section; or
(b) it is granted to a person (alone or jointly with others) who, immediately before the tenancy was granted, was the protected tenant (or one of the protected tenants) or a statutory tenant of the same landlord; or
(c) it is granted to a person (alone or jointly with others) in the following circumstances—
(i) prior to the grant of the tenancy, an order for possession of a dwelling-house was made against him (alone or jointly with others) on the court being satisfied as mentioned in section 11(1)(a) of the [1984 c. 58.] Rent (Scotland) Act 1984 (suitable alternative accommodation available) or on it appearing to the court, under section 48(2)(b) or (c) of the [1987 c. 26.] Housing (Scotland) Act 1987, that other suitable accommodation was available; and
(ii) the tenancy is of the premises which constitute the suitable alternative accommodation as to which the court was so satisfied or, as the case may be, the other suitable accommodation which appeared to the court to be available; and
(iii) in the proceedings for possession the court directed that the tenancy would be a protected tenancy; or
(d) it is granted in compliance with a direction under section 51(2)(ii) of the Housing (Scotland) Act 1987 (power of sheriff to direct that tenant of wrongfully repossessed house be given suitable alternative accommodation) or in pursuance of section 282(3)(b) of that Act (grant of tenancy upon acquisition by public sector authority of defective dwelling).
(2) In subsection (1)(b) above “protected tenant” and “statutory tenant” do not include—
(a) a tenant under a short tenancy;
(b) a protected or statutory tenant of a dwelling-house which was let under a short tenancy which has ended and in respect of which either there has been no grant of a further tenancy or any grant of a further tenancy has been to the person who, immediately before the grant, was in possession of the dwelling-house as a protected or statutory tenant,
and in this subsection “short tenancy” includes a tenancy which, in proceedings for possession under Case 15 in Schedule 2 to to the Rent (Scotland) Act 1984 is treated as a short tenancy.
(3) Expressions used in this section have the same meaning as in the [1984 c. 58.] Rent (Scotland) Act 1984.
(1) In this section—
(a) “housing association tenancy” means a tenancy to which Part VI of the Rent (Scotland) Act 1984 applies;
(b) “secure tenancy” has the same meaning as in Part III of the [1987 c. 26.] Housing (Scotland) Act 1987.
(2) A tenancy which is entered into on or after the commencement of this section cannot be a housing association tenancy unless—
(a) it is entered into in pursuance of a contract made before the commencement of this section; or
(b) it is granted to a person (alone or jointly with others) who, immediately before the tenancy was granted, was the tenant (or one of the tenants) under a housing association tenancy of the same landlord; or
(c) it is granted to a person (alone or jointly with others) in the following circumstances—
(i) prior to the grant of the tenancy, an order for possession of a dwelling-house was made against him (alone or jointly with others) on the court being satisfied as mentioned in paragraph (b) or paragraph (c) of subsection (2) of section 48 of the Housing (Scotland) Act 1987; and
(ii) the tenancy is of the premises which constitute the suitable accommodation as to which the court was so satisfied; and
(iii) in the proceedings for possession the court directed that it would be a housing association tenancy.
(3) A tenancy which is entered into on or after the commencement of this section cannot be a secure tenancy unless—
(a) the interest of the landlord belongs to—
(i) an islands or district council, or a joint board or joint committee of an islands or district council or the common good of an islands or district council, or any trust under the control of an islands or district council; or
(ii) a regional council, or a joint board or joint committee of 2 or more regional councils, or any trust under the control of a regional council; or
(iii) a development corporation within the meaning of the [1968 c. 16.] New Towns (Scotland) Act 1968 (including an urban development corporation within the meaning of Part XVI of the [1980 c. 65.] Local Government, Planning and Land Act 1980); or
(iv) the Scottish Special Housing Association; or
(v) Scottish Homes; or
(vi) a police authority in Scotland; or
(vii) a fire authority in Scotland; or
(b) it is entered into in pursuance of a contract made before the commencement of this section; or
(c) it is granted to a person (alone or jointly with others) who, immediately before it was entered into, was the secure tenant (or any one of the secure tenants) of the same landlord; or
(d) it is granted to a person (alone or jointly with others) in the following circumstances—
(i) prior to the grant of the tenancy, an order for possession of a house was made against him (alone or jointly with others) on the court being satisfied as mentioned in paragraph (b) or paragraph (c) of subsection (2) of section 48 of the [1987 c. 26.] Housing (Scotland) Act 1987; and
(ii) the tenancy is of premises which constitute the suitable accommodation as to which the court was so satisfied; and
(iii) in the proceedings for possession referred to in sub-paragraph (i) above the court directed that it would be a secure tenancy.
(1) No contract entered into after the commencement of this section shall be a Part VII contract for the purposes of the [1984 c. 58.] Rent (Scotland) Act 1984 unless it is entered into in pursuance of a contract made before the commencement of this section.
(2) If the terms of a Part VII contract are varied after the commencement of this section then, subject to subsection (3) below—
(a) if the variation affects the amount of the rent which, under the contract, is payable for the dwelling in question, the contract shall be treated as a new contract entered into at the time of the variation (and subsection (1) above shall have effect accordingly); and
(b) if the variation does not affect the amount of the rent which, under the contract, is so payable, nothing in this section shall affect the determination of the question whether the variation is such as to give rise to a new contract.
(3) Any reference in subsection (2) above to a variation affecting the amount of the rent which, under a contract, is payable for a dwelling does not include a reference to—
(a) a reduction or increase effected under section 66 of the Rent (Scotland) Act 1984 (power of rent assessment committees); or
(b) a variation which is made by the parties and has the effect of making the rent expressed to be payable under the contract the same as the rent for the dwelling which is entered in the register under section 67 of the Rent (Scotland) Act 1984.
(4) Section 70(2) of the Rent (Scotland) Act 1984 (no cancellation of registration of rent until after 3 years) shall cease to have effect.
(5) In this section “rent” has the same meaning as in Part VII of the Rent (Scotland) Act 1984.
(1) The provisions of subsection (3) below apply in relation to a tenancy which was entered into before, or pursuant to a contract made before, the commencement of this section if—
(a) at that commencement or, if it is later, at the time it is entered into, the interest of the landlord is held by a public body (within the meaning of subsection (4) below); and
(b) at some time after that commencement the interest of the landlord ceases to be so held.
(2) The provisions of subsection (3) below also apply in relation to a tenancy which was entered into before, or pursuant to a contract made before, the commencement of this section if—
(a) at that commencement or, if it is later, at the time it is entered into, it is a housing association tenancy; and
(b) at some time after that commencement, it ceases to be such a tenancy.
(3) On and after the time referred to in subsection (1)(b) or, as the case may be, subsection (2)(b) above—
(a) the tenancy shall not be capable of being a protected tenancy or a housing association tenancy;
(b) the tenancy shall not be capable of being a secure tenancy unless (and only at a time when) the interest of the landlord under the tenancy is (or is again) held by a public body; and
(c) paragraph 1 of Schedule 4 to this Act shall not apply in relation to it, and the question whether at any time thereafter it becomes (or remains) an assured tenancy shall be determined accordingly.
(4) For the purposes of this section, the interest of a landlord under a tenancy is held by a public body at a time when—
(a) it belongs to an islands or district council, or a joint board or joint committee of an islands or district council or the common good of an islands or district council, or any trust under the control of an islands or district council; or
(b) it belongs to a regional council, or a joint board or joint committee of 2 or more regional councils, or any trust under the control of a regional council; or
(c) it belongs to a development corporation within the meaning of the [1968 c. 16.] New Towns (Scotland) Act 1968 (including an urban development corporation within the meaning of Part XVI of the [1980 c. 65.] Local Government, Planning and Land Act 1980); or
(d) it belongs to the Scottish Special Housing Association; or
(e) it belongs to Scottish Homes; or
(f) it belongs to a police authority in Scotland; or
(g) it belongs to a fire authority in Scotland; or
(h) it belongs to Her Majesty in right of the Crown or to a government department or is held in trust for Her Majesty for the purposes of a government department.
(5) In this section—
(a) “housing association tenancy” means a tenancy to which Part VI of the [1984 c. 58.] Rent (Scotland) Act 1984 applies; and
(b) “protected tenancy” has the same meaning as in that Act.
(1) In section 3 of the Rent (Scotland) Act 1984 (which makes provision as to statutory tenants and tenancies) in subsection (1) after the word “sections” there shall be inserted “3A,”.
(2) After section 3 of that Act there shall be inserted the following section—
(1) Where the person who is the original tenant, within the meaning of Schedule 1 to this Act, dies after the commencement of section 46 of the Housing (Scotland) Act 1988, the provisions of Schedule 1A to this Act shall have effect for determining what person (if any) is entitled to a statutory or statutory assured tenancy of the dwelling-house.
(2) Where subsection (1) above does not apply but the person who is the first successor, within the meaning of the said Schedule 1, dies after the commencement of the said section 46, the provisions of Schedule 1B to this Act shall have effect for determining what person (if any) is entitled to a statutory assured tenancy of the dwelling-house by succession.
(3) In any case where, by virtue of any provision of the said Schedules 1A or 1B to this Act, a person becomes entitled to an assured tenancy of a dwelling–house by succession, that tenancy shall be a statutory assured tenancy arising by virtue of the said section 46.”.
(3) Part I of Schedule 6 to this Act shall have effect for the purpose of inserting new Schedules 1A and 1B into the [1984 c. 58.] Rent (Scotland) Act 1984.
(4) If and so long as a house is subject to an assured tenancy to which a person has become entitled by succession, section 18 of and Schedule 5 to this Act shall have effect subject to the modifications in Part II of Schedule 6 to this Act.
(1) In section 5 of the Rent (Scotland) Act 1984 (exclusion from being protected or statutory tenancy) after subsection (5) there shall be inserted the following subsection—
“(5A) A tenancy which is a lease under a shared ownership agreement within the meaning of section 106(2) of the [1985 c. 69.] Housing Associations Act 1985 shall not be a protected tenancy.”.
(2) In section 55 of that Act (tenancies to which sections 55 to 59 of that Act apply) after the word “above” there shall be inserted the words “but do not apply, and shall be deemed never to have applied, to a tenancy which is a lease under a shared ownership agreement within the meaning of section 106(2) of the Housing Associations Act 1985.”.
(1) In section 53 of the Rent (Scotland) Act 1984 (regulations of the Secretary of State) at the end of paragraph (b) of subsection (1) (procedure of rent officers and rent assessment committees) there shall be added the words “whether under this Act or the Housing (Scotland) Act 1988”.
(2) The rent assessment committee to whom a matter is referred under this Part of this Act may by notice in the prescribed form served on the landlord or the tenant require him to give to the committee, within such period of not less than fourteen days from the service of the notice as may be specified in the notice, such information as they may reasonably require for the purposes of their functions.
(3) If any person fails without reasonable excuse to comply with a notice served on him under subsection (2) above, he shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale.
(4) Where an offence under subsection (3) 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, any director, manager or secretary or other similar officer of the body corporate or any person who was purporting to act in any such capacity, he as well as the body corporate shall be guilty of that offence and shall be liable to be proceeded against and punished accordingly.