The Structure and a Summary of the Act Scottish secure tenancy
25.Section 12(1) amends section 11 of the 2001 Act to introduce a 12-month qualifying period, where a person has used the house in question as the person’s only or principal home, before a person can apply to be added to a tenancy as a joint tenant. Subsection (2)(a) amends section 32 of the 2001 Act to replace a six-month qualifying period with a 12-month qualifying period before a tenant can apply to assign the tenancy to another person. The proposed assignee will also have to have lived at the property and used it as their only or principal home for 12 months before they may be assigned the property. It also introduces a 12-month qualifying period before a tenant can apply to sublet the tenancy to another person. In joint tenancy and assignation cases, the individual or the tenant of the house in question must have notified the landlord that the individual is living in the property as their only or principal home before the 12-month period begins. The 12-month qualifying period for applying to sublet a tenancy is satisfied where the tenant was the tenant of the house in question throughout the 12-month period ending with the date of application (new subsection (1B) as inserted into section 32 by 12(2)(b)). Section 12(2)(c) inserts new subparagraphs (f) and (g) into section 32(3) to provide new grounds for reasonable refusal of consent.
26.Section 13 amends schedule 3 to the 2001 Act for the purpose of succession to a Scottish secure tenancy. This schedule makes provision as to who are qualified persons to whom a Scottish secure tenancy passes by operation of law on the death of a tenant. Currently paragraph 2(2) of schedule 3 provides that a person living with a tenant as husband and wife or in a relationship of this character, except that they are of the same sex, is a qualified person if the house has been their only or principal home for a period of 6 months preceding the tenant’s death. Section 13(a) replaces this six month qualifying period with a 12-month qualifying period.
27.Paragraph 3 of schedule 3 is amended to provide that a member of the tenant’s family aged at least 16 years is a qualifying person for the purposes of succession to a Scottish secure tenancy, provided the house was their only or principal home throughout the 12 months ending in the tenant’s death. This is a change to the existing requirement that such a family member is a qualifying person where the house was their only or principal home at the time of the tenant’s death.
28.Paragraph 4(b) of schedule 3 is amended to provide that a carer providing, or who has provided, care for the tenant or a member of the tenant’s family where the house was the carer’s only or principal home throughout the period of 12 months ending with the tenant’s death is a qualifying person. This is a change to the existing requirement that such a carer is a qualifying person where the house was the carer’s only or principal home at the time of the tenant’s death and the carer had given up a previous only or principal home.
29.In all cases where a qualifying period applies in section 13, the individual or the tenant must have notified the landlord that the individual is living in the property as their only or principal home before the 12-month period can begin (new paragraph 4A).
30.Section 14(1) provides the Scottish Ministers with the power to issue guidance on any matter relating to recovering possession of a house where such proceedings are to include a ground for recovery of possession set out in paragraph 2 of schedule 2 to the 2001 Act. The Scottish Ministers are also required to consult such persons as they consider appropriate before publication of the guidance. Subsection (2) inserts paragraph (aa) in section 16(2) of the 2001 Act to remove a requirement that the court considers whether it is reasonable to make an order for eviction, in cases where another court has already convicted a tenant of using the house for immoral or illegal purposes or of an offence punishable by imprisonment, committed in, or in the locality of, the house. The landlord will have to have such grounds for seeking recovery of possession of the property and have, within 12 months of the tenant’s conviction or appeal, served a notice on the tenant that the landlord intends to seek recovery of possession of the property. The tenant retains a right to challenge the court action.
31.Section 15 amends schedule 2 to the 2001 Act to allow landlords to seek recovery of possession of adapted property where it has been allocated to persons who do not need adaptations. Landlords have an existing duty under section 16(2)(b) of the 2001 Act to rehouse any such persons in suitable alternative accommodation.