Housing, Equalities and Good Relations

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• Housing, Equalities and Good Relations
• A series of expert seminars hosted by IPEG,
  University of Manchester, in partnership with the
  Equality and Human Rights Commission
• University of Glasgow
• Mike Dailly
• Principal Solicitor
• Govan Law Centre, Glasgow

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Living conditions of tenants of GHA Ltd
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Private sector flats in Govanhill

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Leases and other occupancy rights

• (1) Licences (personal right to occupy)
• Licence an English term referring to a right of
  occupation which is a lesser right than a lease,
  although Scots law historically has recognised
  similar concepts under the terms personal right
  of occupation.
• The Scottish definition of lease is much broader
  to that in English law. Rankine (A treatise on
  the law of leases, 1916 edn) provides the
  following common law definition of a lease at
  Scots common law
• A lease or tack is a contract of location
  (letting to hire) by which one person grants and
  another accepts certain uses, current or
  definite, or the entire control, of lands or
  other heritages for a period of periods,
  definite or indefinite, or even in perpetuity,
  in consideration of the delivery by the grantee
  of money or commodities or both, periodically or
  in lump or in both of these ways.
• Not all permissions to use land are by way of
  lease. For example in Wallace Wallace v.
  Simmers 1960 SC 255 the Court held that a
  contract to occupy a house rent free was not a
  lease.
• /OVER

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Leases and other occupancy rights

• (1) Licences (personal right to occupy)
• The distinction between lease and licence has
  been most controversial in recent years in the
  field of hostel occupation.
• The leading case in Scotland is Conway v.
  Glasgow City Council 1999 SCLR (Sh.Ct.) 248
  1059 1999 SLT 102 2001 S.L.T. 1472 (Note) 2001
  S.C.L.R. 546 2001 WL 825108 (Inner House of the
  Court of Session).
• In this Govan Law Centre case the decision of
  Sheriff Gordon was upheld on appeal to the Inner
  House. Ms Conway raised a damages action for
  unlawful eviction at common law. Although she
  was unable to establish she occupied as a common
  law tenant (because she had no exclusive
  possession of subjects - she shared a room),
  the court did hold that she was entitled to
  reasonable notice at common law she obtained
  1,500 compensation from the City Council after
  being evicted brevi manu (without due process
  no notice) at 2am one morning.
• Section 7 of the Housing (S) Act 2001 enables
  the Scottish Ministers to regulate minimum
  periods of notice (not done so yet).
• /OVER

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Leases and other occupancy rights

• (2) Service occupancy
• Where a person is given a house by his or her
  employer the contract may be either a lease or a
  lesser right of service occupancy depending on
  the circumstances
• Where the contract expressly states that the
  occupancy will terminate on the employment
  ending, this will be a service occupancy. Where
  this is not stated in writing, a service
  occupancy may be established if the facts
  circumstances of the case reveal that occupation
  was necessary for the performance of the
  employees duties and that the employee was
  required to reside in the house.

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Real right or personal right?

• Since the Leases Act 1449, if a person occupied
  land under a tack (Scots
• for lease) the tenant contract was good against
  the landlords successor.
• Before the 1449 Act, small farmers in Scotland
  could sow their crops, and
• find that the had no lease (and crops) as their
  landlord had sold the land to
• a third party. This was because a lease at
  common law is only a personal
• right affecting the parties to the contract.
• The principle of the 1449 Act - which transformed
  leases into real
• rights is advanced in modern housing legislation
  which creates the
• more powerful concept of security of tenure.

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Rights obligations of the parties

• Rights obligations will depend upon what
  provisions are written into a lease,
• however in any event (a) the common law will
  imply certain duties into the
• lease for both landlord tenant, and (b)
  equally, statutory law will also imply
• certain obligations duties.
• At common law a tenants principal obligations
  are
• 1. To enter into possession (gain access to their
  home)
• 2. Occupy and use the subjects
• 3. Use the subjects only for the purpose for
  which let
• 4. Take reasonable care of the subjects
• 5. Pay the rent when it becomes due
• 6. To plenish the subjects (furniture - viz.
  Hypothec - security for rent).
• At common law a tenants key rights are
• 1. To be placed in full possession (ie. peaceful
  occupation) and be allowed to remain there for
  the duration of the lease
• 2. Be provided maintained in subjects which
  are wind watertight, and tenantable habitable
• 3. Have repairs carried out within a reasonable
  time.
• /OVER

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Rights obligations of the parties

• Rights obligations will depend upon what
  provisions are written into a lease,
• however in any event (a) the common law will
  imply certain duties into the
• lease for both landlord tenant, and (b)
  equally, statutory law will also imply
• certain obligations duties.
• At common law a tenants principal obligations
  are
• 1. To enter into possession (gain access to their
  home)
• 2. Occupy and use the subjects
• 3. Use the subjects only for the purpose for
  which let
• 4. Take reasonable care of the subjects
• 5. Pay the rent when it becomes due
• 6. To plenish the subjects (furniture - viz.
  hypothec - security for rent).
• At common law a tenants key rights are
• 1. To be placed in full possession (ie. peaceful
  occupation) and be allowed to remain there for
  the duration of the lease
• 2. Be provided maintained in subjects which
  are wind watertight, and tenantable habitable
• 3. Have repairs carried out within a reasonable
  time.
• /OVER

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Rights obligations of the parties

• Important to note that
• Statutory duties obligations override any
  contractual provisions.
• Common law rules apply unless expressly clearly
  excluded (if ambiguous then the contra
  proferentum rule may apply the contractual
  provision may be interpreted in favour of the
  tenant, the party who would not benefit from it.
• The consequences of breach - depends on if a
  material breach (sufficiently serious), if so the
  injured party is entitled (but not required) to
  end (terminate) the contract. In residential
  tenancies a landlords ability to enforce
  remedies for breach of contract is heavily
  curtailed by statutory protective/regulatory
  primary legislation.

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Unfair terms interpretation of leases

• The Unfair Terms in Consumer Contract Regulations
  (UTCCR) 1995 came into effect on 1 July 1995
  (implementing a EC Directive 93/13/EC). The
  regulations have since been replaced with the
  UTCCR 1999 (SI 1999/2083).
• It is clear that the regulations apply to
  consumer contracts and leases where the contract
  is a standard form - ie. has not been
  individually negotiated. In order to rely upon
  same one has to be a natural person.
• In terms of the regulations a contract must be
  written in plain, intelligible language, with any
  doubt interpreted in favour of the consumer.
• Key limitations the UTCCR do not apply to core
  terms - for example the level of rent in a
  tenancy agreement. They would apply to a
  financial penalty clause, for example (more often
  seen in private sector tenancies).
• A unfair term of contract is one which causes a
  significant imbalance in the parties rights and
  obligations under the contract to the detriment
  to the consumer (for our purposes tenant).
• Effect If the court holds that a term is
  unfair it can disapply it -in another words
  read the contract as if those words were not
  there. The Office of Fair Trading handles
  complaints under the UTCCR, but as noted a
  consumer can found upon them in a court action.

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Assignation subletting

• Common law rules
• Unfurnished premises - the tenant has the implied
  power to assign the lease or sublet (but this can
  be removed if the contract expressly excludes
  same).
• Furnished premises - no implied right to assign
  or sublet at common law.
• Important to note - when we come to look at
  Scottish secure tenancies, and assured and short
  assured tenancies - the relevant Housing Acts
  contain detailed rules on the ability of tenants
  to assign or sublet. These override the common
  law in the context of SSTs and ATs.

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Termination of leases

• Termination - either prematurely or at the date
  of ish (natural end of lease)
• A Premature termination of lease - variety of
  ways
• 1. Parties may have a break clause in the lease
• 2. Parties may agree to end the lease
• 3. Contract may be frustrated e.g. premises
  subjected to fire
• 4. Landlord may exercise the right to terminate
  under a contractual irritancy clause
• 5. If no irritancy, either party may rescind in
  response to a material breach by the other.
• Rules on irritancy clauses in the LR (MP) (S) Act
  1985 (ss. 4 to 7) only apply to
• commercial leases - so for residential leases
  only common law rules.
• Bankruptcy and death do not automatically
  terminate a lease - because a lease
• can transmit to trustee in bankruptcy or executor
  (unless assignation is
• prohibited section 16 of the Succession
  (Scotland) Act 1964 makes provision for
• succession of leases - in some cases overriding
  any contractual provision.
• /OVER

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Termination of leases

• B Termination at ish - i.e. at the natural end
  point of the lease.
• The landlord must give Notice to Quit in order to
  prevent tacit relocation,
• otherwise - as noted earlier - the lease will
  repeat for its agreed duration (if less
• than one year - eg. A lease for 6 months will
  repeat for 6 months unless the
• landlord gives Notice to Quit). We will look at
  the details requirements to give a
• valid NtQ in the contact of assured and short
  tenancies under the Housing
• (Scotland) Act 1988.
• Importantly, there is no security of tenure for a
  common law lease - thus if valid
• NtQ is served, the landlord has an absolute right
  to recover possession upon
• raising an action for recovery of heritable
  possession. In other words there is no
• substantive defence available.
• C Section 11 of the Homelessness etc.,
  (Scotland) Act 2003 is expected to
• come into force in early 2005. All RSLs and
  banks/secured lenders raising
• eviction/repossession proceedings will need to
  give notice to the local authority
• where the house is situated. The form of notice
  will be prescribed by regulations.

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Types of lease

• The types of tenancies we will be examining in
  detail in this course include
• 1. Scottish secure tenancies (SST)- Housing
  (Scotland) Act 2001
• 2. Short SST - 2001 Act
• 3. Assured tenancies - Housing (Scotland) Act
  1988
• 4. Short assured tenancies - 1988 Act
• 5. Ordinary contractual or common law tenancies
• 6. Regulated tenancies - we will not cover
  tenancies under the Rent (Scotland) Act 1984
  because there are relatively few (although there
  are still pockets in Glasgow Edinburgh in
  particular).

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Common law tenancies

• In practice a common law tenant will be a tenancy
  which does not fall into any of the statutory
  protected categories
• tenants of resident landlords
• Crown tenants
• cases excluded by sch1 to the 2001 Act - tenants
  occupying in terms of contract of employment
  (which may be service occupancies) lets of less
  than 6 months to homeless persons, decant
  accommodation where repairs are carried out,
  student lets etc.,
• A person aggrieved by the offer of a common law
  lease by a RSL or local authority can appeal to
  the court (by summary application) in terms of
  section 38 of the 2001 Act. Where the court
  considers there are good grounds it may order
  the grant of a SSST or SST.
• Statutory rights of repair (s.113, sch 10, 1987
  Act, and s.27 and sch 4, 2001 Act) apply to
  common law lets the UTCCR apply a common law
  tenant can only be removed by due process of law
  (in other words by order of the court).

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Other occupancy rights

• Non-tenants at common law may nevertheless be
  residential occupiers for the
• purpose of section 22 23, Rent (Scotland) Act
  1984. The 1984 Act excludes
• certain categories of hostel occupiers and
  tenants of resident landlords.
• However, the common law nevertheless applies
  (i.e. it is possible for some
• hostel occupiers and tenants of resident landlord
  to be a tenant at common law -
• if they arrangements meets the cardinal elements
  of lease).
• Residential occupiers cannot be removed without
  due process of law (order of
• the court) - section 22(5) defines residential
  occupier as follows
• 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.

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Matrimonial Homes (Family Protection)
(Scotland) Act 1981

• Key features
• Section 1 - Occupancy rights - right of the
  non-entitled spouse to continue to occupy, or if
  not in occupation, to enter into and occupy the
  matrimonial home.
• Section 2 - Subsidiary consequential rights
  non-entitled spouse has the legal right (without
  the consent of the entitled spouse) to make
  payment of rent, rates, mortgage etc perform any
  obligation incumbent on the entitled spouse
  carry out essential repairs etc.
• Section 2(8) - where entitled spouse abandons
  tenancy, occupation by non-entitled spouse shall
  continue the tenancy.
• Section 3 - Regulation by court of occupancy
  rights - including declaration, enforcing and
  restricting of those rights.
• Section 4 - Exclusion orders - necessary for
  protection of the applicant or any child of the
  family from any conduct or threatened conduct of
  the non-applicant spouse, which would be
  injurious to the physical or mental health of the
  applicant or child.

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Matrimonial Homes (Family Protection) (Scotland)
Act 1981

• .

• Key features
• Section 13 - Transfer of tenancy
• court may make an order transferring tenancy to
  non-entitled spouse as is just and reasonable
  and having regard to circumstances of the case
  including matters set out in section 3(3) of the
  1981 Act -
• Section 3(3) factors includes
• (a) conduct of the spouses in relation to each
  other
• (b) respective needs and financial resources of
  the spouses
• (c) the needs of any child of the family
• (d) whether the entitled spouse offers or has
  offered to make available to the non-entitled
  spouse any suitable alternative accommodation.
• Section 13(7) - not competent to transfer if
  tenancy is incident of employment, agricultural
  lease, crofting lease, or long lease (20 years).
• Section 13(11) - where transfer of a a Scottish
  Secure Tenancy, no account taken of the loss of a
  right to buy.

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Matrimonial Homes (Family Protection) (Scotland)
Act 1981

• Key features
• Section 18 - Occupancy rights of cohabiting
  couples
• For sections 2, 3, 4, 5(1), 13 14-17 22 to
  apply to a non-entitled cohabitee, that person
  must first apply to the court for a declaration
  of occupancy rights, under section 18.
• In determining whether man women are cohabiting
  couple, the court will have regard to all of the
  circumstances including (a) time for which they
  have been living together and (b) whether there
  are any children of the relationship.
• Declaration of occupancy rights can be granted
  for such period as the court thinks fit, but not
  exceeding 6 months at any one time.

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Case scenarios - no.1

Jane and Mark Thomson are a married couple.
They have accepted a management transfer from
their landlord. Mark takes entry to the new
subjects today, however, you subsequently
discover that a week ago Mark had assaulted
Jane. Mark is alcoholic. Mark was charged and
released on bail. Jane is refusing to move
out of the existing tenancy which is in Marks
name. She advises that Marks behaviour is the
final straw and she wants a divorce. What
problems can you identify in this
case? /over
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EAST AYRSHIRE COUNCIL V. McKNIGHT 2003 HOUS
LR 114 before allowing a tenant to take
entry to transfer accommodation you must make
sure you have vacant possession of the old
tenancy subjects and if there is a residing
partner they should sign a renunciation of
occupancy rights ...
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Case scenarios - no.2

• 2 Jane McDonald
• Jane is a student and has been residing a room
  in a friends flat since the start of term. She
  has fallen out with her friend and has been told
  to leave at the end of the week. She has been
  trying to find somewhere else to stay, but its
  really difficult at such short notice. She is
  worried that she will be thrown out, and will
  have no-where to go with her possessions at the
  weekend.
• What rights does Jane have?

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Case scenarios - no.3

• 3 Andrew Richards
• Andrew occupies share a room in a homeless
  hostel. He has lived there for two years. One
  night a fight breaks out between some of the
  residents. The hostel manager throws out four
  residents on the spot, including Andrew.
• Does Andrews have any legal rights?
• If Andrew had his own room would his position be
  any different - even if he had signed an
  agreement entitled occupancy licence?

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