Scottish Government

SHORT SCOTTISH SECURE TENANCIES

The Short Scottish Secure Tenancy (section 34)

121. The short Scottish secure tenancy (short SST) has many of the features of the Scottish secure tenancy but also some differences. The majority of tenancies that social landlords will offer to their tenants will be SSTs but in specifically defined circumstances, it will not be appropriate for a full Scottish secure tenancy to be offered and social landlords will be able, but not obliged, to offer a short SST instead.

122. Following consultation with interested parties, the Scottish Executive has decided that it would not be appropriate to convert all existing short assured tenancies to full SST tenancies on 30 September 2002. Indeed, it will expect RSLs to review their existing short assured tenancies and bring them to an end in the normal way at the ish date for the tenancy in question, following the procedures in the Housing (Scotland) Act 1988 (section 33), by serving a notice on the tenant at least two months (or more if the terms of the tenancy provide) before the ish date for the tenancy.

123. RSLs will need to decide, in advance, whether they wish to relet the tenancy with a short or a full SST. If they opt for a short SST, they will need to follow the notification procedures set out at paragraph 126 and ensure that the tenancy meets the specific criteria (described below).

The basic conditions for the short SST to apply are that:

• it would have been an SST otherwise;
• it is for 6 months or more; and
• the landlord has served a notice on the prospective tenant that this type of tenancy will be offered.

It is important to note that the condition that a short SST would have been an SST otherwise means that the requirements at section 11(1) of the Act relating to an SST must be met.

When a Short SST May be Used

124. The circumstances in which a short SST may be used are set out in paragraphs 1-7 of Schedule 6 to the Act. In summary they are:

1. lets to persons evicted for anti-social behaviour from a tenancy in Scotland, England, Wales or Northern Ireland, within a period of 3 years prior to the service of a notice that a short SST will be offered;

2. lets to persons where they or other members of their household are the subject of ASBO granted on or after 30 September 2002 under s 19 of the Crime and Disorder Act 1998;

3. temporary lets to persons moving into the area in order to take up employment;

4. temporary lets pending development affecting the house;

5. temporary lets to homeless persons for tenancies of 6 months or over (lets to homeless persons of under 6 months are covered by Schedule 1 to the Act, tenancies which are not SSTs);

6. temporary lets to persons requiring or receiving housing support services as defined in section 91(8) of the Act (N.B. permanent lets to persons requiring or receiving housing support services should be Scottish secure tenancies);

7. lets in houses leased by the landlord from another body where the terms of the lease preclude the landlord subletting under an SST.

Scottish Ministers, under section 34(3)of the Act, may modify this list by order.

The Rights of a Short SST

125. The rights under a short SST are identical to the full SST except that:

• there is no right to buy;
• there is no provision for succession; and
• security of tenure is limited.

Rights to assign, sublet, etc. under a short SST are limited to the period of the short SST.

The Procedures for Establishing a Short SST

126. To create a short SST, the landlord must serve a notice on the prospective tenant which:

• must be in such form as prescribed in regulations by Scottish Ministers;
• must state that the tenancy to which it relates is to be a short SST and specify what category of short SST it is, by reference to the paragraph of Schedule 6 that applies, e.g. a short SST given because an ASBO had been taken out against the tenant or a member of the tenant's household would be a short SST in terms of paragraph 2 of Schedule 6 to the Act; and
• must specify the term of the tenancy, which must be for at least 6 months in the first instance.

127. Subsection (5) provides that at the ish of the tenancy (i.e. the termination date), the tenancy may continue by:

• tacit relocation (literally, "silent renewal of lease") in this context is the common law rule whereby a lease will, by operation of law, be treated as automatically renewing itself for the same period (or for a year if that period is greater than one year) and on the same terms unless either of the parties have taken steps to prevent tacit relocation from operating; or
• express agreement where the parties can agree to the tenancy being continued for some other period on the same or different terms. The parties are free to agree that it should continue for a period of less than 6 months. The tenancy will nevertheless continue to be a short SST.

The Procedures for Recovery of Possession of a short SST

128. Landlords can, at any time, use the procedures available under the full SST (section 14 of the Act) to recover possession, for example in cases of non-payment of rent or anti-social behaviour. There are also additional special procedures to allow landlords to recover possession after the specified period (the term) of the lease. This does not require the landlord to demonstrate any specific conduct or management grounds. All that is required is that the lease has come to an end and that the specified procedures have been followed.

129. These procedures are set out in section 36 of the Act and are as follows:

• the landlord must serve on the tenant a notice of recovery of possession which must be in such form as Scottish Ministers prescribe by regulations.

130. The notice must:

• state that the landlord requires possession of the house;
• specify a date not earlier than-

(i) 2 months, or such longer period as the tenancy agreement may provide, from the date of service of the notice, or

(ii) the date on which the tenancy could have been brought to an end by a notice to quit had it not been a short SST;

whichever is later, on or after which the landlord may raise proceedings for recovery of possession (subsection (3)).

131. The notice ceases to be in force 6 months after the date specified in it or when it is withdrawn by the landlord, whichever is earlier (subsection (4)).

132. The court must make an order for recovery of possession:

• where the tenancy has reached its term, tacit relocation is not operating (i.e. it will not be automatically renewed for the same length of time);
• no further contractual tenancy has been entered into; and
• where a notice has been served following the correct procedure (subsection (5)).

133. An order under subsection (5) must appoint a date for recovery of possession and has the effect of terminating the tenancy and giving the landlord the right to recover possession of the house at that date (subsection (6)).

Appeals (section 38)

134. This provision gives tenants a right of appeal to the courts if they are not satisfied with the type of tenancy or occupancy offered by the landlord, for example where the tenant has been offered a short SST and thinks he is entitled to an SST. Landlords should make tenants aware of this right when offering a short SST or occupancy agreement. Notwithstanding the right of appeal to the courts, landlords should have clear and well-publicised internal appeals mechanisms in place.

Short SST and Anti-Social Behaviour

135. There are special arrangements applying to short SSTs (offered on certain of the grounds in Schedule 6) to facilitate their use as probationary style tenancies designed to help tackle anti-social behaviour.

Short SST Following Eviction

136. Paragraph 1 of Schedule 6 provides for a short SST to be offered where a prospective tenant has been previously evicted (anywhere in the United Kingdom) for anti-social behaviour. The previous eviction can be from any social rented sector housing in the UK which is let under a secure or assured tenancy, or from any private rented housing let under an assured or short assured tenancy in Scotland, or an equivalent tenancy in the rest of the UK. This 'probationary' tenancy enables tenants to be given a second chance to sustain a successful tenancy. If the tenant (or member of their household) continues to act in an anti-social manner, the landlord can seek possession under the appropriate conduct grounds in Schedule 2. Alternatively, the landlord (perhaps if the tenancy is near its ish) may choose simply to bring the tenancy to an end at the ish using section 36 (see paragraphs 128 to 133 above). The probationary period will be for at least 6 months and can be for up to 12 months. It can be converted to a full SST at any time in that period. Landlords should note, however, that at the end of 12 months on probation, tenants automatically receive the full tenancy, provided the landlord has not raised proceedings for possession.

Short SST with Anti-Social Behaviour Order (ASBO)

137. Paragraph 2 of Schedule 6 enables landlords to offer a short SST where tenants (or a member of their household) have had an ASBO served on them. As with a previous eviction case, the tenancy will become a full SST automatically after 12 months if the landlord does not raise proceedings for possession. If the tenant (or member of their household) continues to act in an anti-social manner, the landlord can seek possession under the appropriate conduct grounds in Schedule 2. Alternatively, the landlord (perhaps if the tenancy is near its ish) may choose simply to bring the tenancy to an end at the ish using section 36.

138. Where a tenant applies for housing, the application form should require a declaration from the applicant as to whether he has been evicted from a previous tenancy within the last 3 years for anti-social behaviour and should ask for details of the landlord concerned. The receiving landlord should seek a copy of the order for possession, including the original summons, so that it can be confirmed that the decree had been granted due to one of the anti-social grounds and not on any other ground such as rent arrears. This has implications for all landlords on the records they keep in relation to their tenants and, in particular, in relation to records of evictions on anti-social (including criminal) behaviour grounds.

Support for Short SST

139. Section 34 (7) requires landlords (where the tenant is on a short SST because of previous anti-social behaviour or an ASBO) to provide or ensure the provision of such housing support services as it considers appropriate to enable the tenancy to convert to an SST. The types of support envisaged should all fall within the broad definition of "housing support services" found in section 91(8) of the Act and might include, for example, alcohol/debt/family counselling, or social work support. Section 34 (8) enables Scottish Ministers to issue guidance as to the housing support services which are appropriate. We will consider, in due course, whether further guidance is required.

140. Landlords should make sure that the support it considers appropriate to enable conversion to an SST is linked to its stated objectives in granting a short SST. In other words, the landlord should make clear that the short SST is being granted because of certain behaviour and that it will convert to an SST in 12 months under section 37 or the landlord will offer a full SST before that time, provided that the behaviour is altered and that the landlord will make certain support available specifically to help the tenant to successfully convert to an SST.

Where the Tenant Refuses Support

141. Should the tenant refuse support, it will be for the landlord to decide whether it wishes to offer the short SST on the basis that the behaviour will improve without support or whether it wishes to make acceptance of support a condition of the short SST offer. It may be that the landlord will decide to allow a short SST for 6 months without support and review the situation before the 4 months stage, to allow 2 months', notice if the landlord decides to end the tenancy. If the landlord is unhappy with the progress of the behaviour, it can at 6 months bring the short SST to an end or offer to continue it for a further 6 months, but on condition that support is accepted.

142. The short SST is sufficiently flexible to allow the landlord to determine what support is appropriate in individual cases. It is important to note that the use of these "probationary" style short SSTs is entirely at the landlord's discretion (provided the criteria for offering such tenancies are met). Landlords are not required to use them. It will be for the landlord to decide but if the landlord does use "probationary" tenancies it must provide whatever support is necessary to assist the tenant to convert to a full SST at the 12 month stage.

Conversion to Short SST (section 35)

143. This section entitles a landlord to serve a notice converting an SST to a short SST where an ASBO has been taken out against the tenant or a member of the tenant's household. The notice must specify the tenant and/or member of the tenant's household who is subject to the ASBO. A landlord can convert a SST to a short SST where the ASBO was given at a previous address by a different landlord, provided the tenancy at the previous address had been a SST.

144. This means that all social landlords will require to have information about ASBOs served on their tenants or on members of their tenant's household. Local authorities, as the agencies responsible for applying for ASBOs, have a crucial role to play here in relation to providing information to other social landlords about ASBOs granted.

145. Where an ASBO is granted in relation to a social sector tenant, the local authority which applied for the ASBO should inform the landlord of the household concerned that an ASBO has been granted. In most cases, the landlord concerned will have made the request for an ASBO of the local authority and the local authority will simply require to confirm the outcome.

146. In some cases, however, it is possible that the landlord will not be aware that an ASBO has been granted, unless the local authority informs the landlord. This could be, for example, where an individual rather than the landlord has applied to the local authority for an ASBO against the tenant or a member of the tenant's household.

147. For this reason, local authorities who have not already done so, should put in place protocols for sharing information with other social landlords about ASBOs granted in respect of persons in any household of which they are the landlord. Such sharing of information should take account of the Data Protection legislation.

148. The intention of this power to downgrade an SST to a short SST is to strengthen landlords' powers to deal with anti-social tenants. The conversion of the tenancy from SST to short SST sends a strong signal to the tenant that the landlord will not tolerate anti-social behaviour. This new power to downgrade a tenancy will apply only in relation to ASBOs granted on or after commencement of the SST on 30 September 2002. It will not apply to ASBOs already in force at that time.

149. As with the short SST for those who have previously been evicted for anti-social behaviour, the short SST under this section is intended as a 'probationary' tenancy and landlords are required in terms of section 34 (7) to give appropriate support to the household to enable the tenancy to convert to an SST after 12 months. There is no scope to extend this type of short SST beyond the 12 month period. Either the tenancy must convert or it must be brought to an end, either at the ish or through the courts. If landlords consider that support continues to be necessary on conversion to the full SST, they have discretion to continue to provide or ensure the provision of such support. If anti-social behaviour recurs after conversion to a full SST, the landlord can seek repossession through the courts or a further ASBO can be sought and, if granted, the tenancy can once again be demoted to a short SST.

150. Section 35(5) gives a tenant a right of recourse to the court where the tenant is aggrieved by a landlord converting an SST to a short SST. Where the court finds in favour of the tenant, it can effectively reinstate the SST (subsection (6)).

151. The purpose of these probationary style short SSTs is to encourage landlords to give a tenancy to applicants whom they might not otherwise be inclined to house. It also gives the tenant a further clear incentive to improve their behaviour and ensures that they will receive the support they need to sustain a full tenancy in a responsible manner.

152. The Executive believes that this is a positive way of tackling the problem of anti-social behaviour, which has more advantages over simply moving the problem elsewhere without attempting to resolve it.

153. Landlords will continue to have powers to evict for repeat of unreasonable conduct both during and beyond the probationary period.

Conversion to SST (section 37)

154. Where a tenant has been granted a short SST because they have previously been evicted from a tenancy for anti-social behaviour or because an ASBO has been taken out against the tenant or one of the tenant's household, this section provides for the automatic conversion of the short tenancy to a full SST after a period of 12 months, unless the landlord has served a notice for recovery of possession on the tenant. It is important for landlords to note that unless they take steps to recover possession, the tenancy will convert to an SST. It is also important to note that the presumption must be in favour of conversion to a full SST unless there are grounds for recovery of possession. Furthermore, on conversion to an SST, the landlord should sign the tenant up to a Scottish secure tenancy agreement. Landlords should note that there is no provision for conversion to a full SST for those short SSTs granted on the grounds 3 to 7 described in paragraph 124.

155. Subsections (2) and (3) make further provisions for cases where a landlord has served such a notice for recovery of possession. These provide that where the notice has ceased to be in force, or has been withdrawn, by the landlord without proceedings for recovery of possession having been raised, the tenancy will convert to an SST. This will be with effect from the date on which the notice ceased to be in force, or was withdrawn, or the expiry of the 12 month period, whichever is the later.

156. If proceedings for recovery of possession have been raised and have been finally determined in favour of the tenant, the tenancy becomes an SST with effect from the date the proceedings were finally determined or the expiry of the 12 month period, whichever is the later.

157. Subsection (3) provides that proceedings are finally determined when the period for appealing has expired without an appeal being lodged, or where an appeal is lodged the appeal is withdrawn or finally determined.

158. Subsection (4) provides that where a tenancy becomes an SST by virtue of this section, the landlord must notify the tenant of that fact and of the date on which the tenancy became an SST. In so doing, it is important that landlords take the opportunity to explain the rights and responsibilities tenants will have under the SST.

159. Given that without intervention, conversion to the SST takes place automatically at the 12 month point, it is vital for landlords to have in place systems to monitor this and, in particular, to have systems in place to review the tenancy to allow for 2 months' notice if the landlord wishes to end the tenancy.

160. Landlords will also wish to make clear to tenants on conversion to an SST the consequences of any further anti-social behaviour.

161. It will be open to landlords to decide whether or not to use short SSTs as probationary tenancies as a measure to deal with anti-social behaviour. Tenants found guilty of anti-social behaviour - either through eviction for such behaviour or the serving of an ASBO against them or someone in the household for anti-social behaviour relating to the tenancy - are not entitled to a short SST. It is for the landlord to decide, on a case by case basis, whether it wishes to allow a tenant a short SST. The Executive would, however, encourage landlords to use short SSTs in such cases as a more constructive approach to the problem of anti-social behaviour than simply to suspend applicants from the housing list.

162. Equally, where a short SST converts to an SST, it is for the landlord to decide if anti-social behaviour recurs, whether to apply for an ASBO and, if the ASBO is granted, to downgrade the SST to a short SST. The landlord has the option to consider whether to take some other action, including eviction action under section 14, without offering the tenant a further short SST.

There is no automatic conversion from a short SST to an SST for tenants who have been granted a short tenancy on other grounds specified in Schedule 6.

Application of sections 23 to 33 to Other Tenancies (section 39)

163. This section applies the rights and obligations of the SST to a tenancy which would be an SST if it were not tied accommodation or part of a building which is primarily for non-housing use. The key provisions of the SST which do not apply to such tenancies relate to termination of the tenancy and repossession of the house; to joint tenancies; to succession rights; and to the tenant participation provisions. Note that the right to buy only applies to houses let under an SST.

Notices and Interpretation of Chapter 1 (sections 40 and 41)

164. These sections clarify how notices are to be served and what is meant by certain terms used in this Chapter of the Act. The reference in section 40 of the Act to the ways in which a "notice or other document" is to be given to a person is not intended to cover routine letters such as rent increase letters which may be sent by normal post.