This is the third in my series of posts on the new Housing (Scotland) Bill. My first post looked at the overall context and the rent provisions. My second post considered the reforms around evictions. This third post considers Part 3 and 4 of the new Bill, which might fall under a broad heading of “other stuff to do with residential tenancies”.
Part 3 – tenant personalisation of the let property
Part 3 of the new Bill is headed “Pets and changes to let property”. It comprises two sections. Both of those sections include a new right for a tenant to bring a pet into the let property, with the first section relating to the private sector and the second the social sector. The first of those sections also addresses a different matter for tenants with a PRT, namely making certain changes to their home. As I’ll discuss below, there are already relevant rules in place for tenant alterations in socially rented homes. For this commentary on the Bill, I’ll deal with the provisions about pets as a whole before returning to private sector alterations.
The other topics covered in this post relate to Part 4 of the new Bill. As noted in the first post of this series, this deals with the otherwise unrelated topics of: unclaimed tenancy deposits; registration of letting agents; tenant termination of a joint private residential tenancy; modernisation of the rules for notice/document service or delivery in the social sector; and the possibility of converting ALL assured tenancies to the more modern PRT. I’ll offer some thoughts on all those matters bar the notice provisions below.
A pet topic
As with my other coverage of this Bill, I am generally trying to avoid getting into the merits of the any of its big-ticket provisions. I’ll touch on some background here though for context. The merits of facilitating the keeping of pets by tenants, or making it trickier for landlords to refuse pets, is something that can be debated: clearly, pets can contribute towards repair, maintenance or replacement costs that might not otherwise exist at the end of a let (and particularly a furnished let), but conversely pets can make a tenant feel more comfortable in their home and that might lead to a longer-term let and/or better care of the let property being taken by the non-animal occupiers. A paper by Rolfe, McKee, Feather, Simcock and Hoolachan entitled “The role of private landlords in making a rented house a home” for the International Journal of Housing Policy touches on this (and there is a useful blog post by Citylets, which refers to that paper). Finally, where someone already has a pet and then needs to move with that pet (perhaps owing to changing family circumstances), a regime that is restrictive of pets can curtail options. This was accordingly something that featured in the Scottish Government’s “A New Deal for Tenants” consultation a few years ago. The results of the Scottish Government’s recent Engagement Questionnaire about pets in rented accommodation can be found online.
Turning to the underlying law, in general terms, at the beginning of any tenancy the position around pets can be agreed between the landlord and the tenant. Given the relative bargaining power of the parties, one can surmise the landlord’s view on this matter would hold more sway than the tenants. Where there is a term of the lease against pets, a tenant keeping one dog in the let property will be in breach of that term: Glasgow District Council v Murray, 1997 Hous. L.R. 105.
The current version of the model tenancy agreement for a PRT (which is available on the Scottish Government website) contains the following about pets:
The Tenant will not keep any animals or pets in the Let Property without the prior written consent of the Landlord. Any pet (where permitted) will be kept under supervision and control to ensure that it does not cause deterioration in the condition of the Let Property or common areas, nuisance either to neighbours or in the locality of the Let Property
Clause 35. Pets
Section 29 of the new Bill introduces a new Part 5A to the 2016 Act – like the rent control area provisions, these pet provisions are just about PRTs (a point I will return to below). New section 64A of the 2016 Act means that (unless the lease has already been drafted to pre-consent pets), there will be system whereby a tenant may keep a pet (or pets) at the let property with the landlord’s consent, and that consent may not be unreasonably refused. An amendment to the statutory terms for PRTs that are required in a such tenancy (by section 8 of the 2016 Act) is also made later in the Bill, to capture that a tenant may keep pets at the let property in accordance with Chapter 1 of a new Part 5A (and a separate amendment caters for the reform I discuss below, to make changes to the let property in accordance with Chapter 2 of Part 5A).
“Pet” is a defined term. It means an animal kept by a person mainly for: personal interest (including as regards its welfare, treatment or training); companionship; ornamental purposes; or any combination of those. The “mainly” might allow an animal to occasionally do something on a commercial basis: I recall a former colleague’s tale about her (male) dog being clocked by someone involved in the breeding of dogs whilst they were out walking. Her dog was deemed to be a suitable daddy dog. This was agreed to, and a fee was paid for this. That dog would, I would submit, still be a pet even after one deed was done, but might not be if an owner made a business of this.
Requests for the landlord’s consent to keep a pet are to be in writing and must fulfil any other requirements prescribed by regulations. In turn the landlord must respond (in writing, and in compliance with any requirements prescribed in regulations) within 42 days of receipt of the request, to notify the tenant whether they consent (with or without condition) or refuse to consent to this. Conditions must be “reasonable”.
The statute does not state what might be reasonable for the landlord to do or stipulate here, but (as can be the case with legislation these days) this is to follow in regulations as there is power conferred on Ministers to make provision about when it is reasonable to refuse consent to keep a pet and about when a consent condition for keeping a pet is reasonable.
(I would prefer if this was simply in the primary legislation. I understand that specific regulations on this topic will allow for a targeted consultation, but I would have thought/hoped they could have included the reasons here so they could just be done with it. So be it.)
When this matter was aired by the Scottish Government previously, some possible reasonable reasons for refusal and reasonable conditions attached to consent were mooted. Reasonable reasons for refusal could include the following:
- The property is unsuitable for the type and number of pets requested.
- The animal is listed in the Schedule to The Dangerous Wild Animals Act 1976.
- The animal(s) are being kept for commercial purposes.
Of those, the second has been catered for in the Bill, by saying its provision noting that “‘animal’ does not include a dangerous wild animal within the meaning given by section 7(4) of the Dangerous Wild Animals Act 1976.”
To this, one might add that title conditions affecting the let property would surely be relevant. Indeed, the Consultation on the New Deal for Tenants showed an awareness of this when comparing how different occupation arrangements would be restricted in terms of pet-keeping. A possible restriction on owner occupiers “in the property deeds” was acknowledged. An earlier blog post on this blog by Andrew Todd touched on this possibility. By chance I also chatted this matter through with my friend and former colleague Professor Andrew Simpson recently, and he told me he knew of a property with a burden against the keeping of bees and pigeons. It would be perverse if a tenant could force a landlord into consenting to the breach of a burden only to find that a neighbour could pursue then raise an action for a breach of that burden. It will also be recalled that section 9 of the Title Conditions (Scotland) Act 2003 states that, “A negative burden… is enforceable against… the owner, or tenant, of the burdened property”, so a landlord objecting to a pet where there was a relevant negative burden in such circumstances could be saving the tenant from enforcement action. This ought to be covered in any regulations (and arguably should have been covered in the new Bill).
Moving away from refusal, reasonable conditions for approval were said to include the following:
- The payment of an additional amount of deposit within certain limits where it is reasonable to do so…
- The tenant must take all reasonable steps to supervise and keep pets under control and ensure they do not cause a nuisance to neighbours.
One other point to note about the private landlord here is that their inaction cannot be taken is consent, owing to section 64B(5): a non-reply is deemed a refusal of consent.
The other important feature of this scheme is a tenant’s right to appeal to the First-tier Tribunal. The tenant must do this within a maximum of 84 days. That overall deadline results from the operation of two separate time periods: they have 42 days to tell the landlord they plan to appeal in response to the landlord’s response or deemed refusal, and then they have a further 42 days from that point to go to the First-tier Tribunal. This seems important for a tenant to note: there are a couple of procedural trip hazards, and also the total period to prepare the appeal could be substantially less than 84 days where the initial intimation to the landlord was prompt.
My impression is that the First-tier Tribunal (Housing and Property Chamber) is not exactly casting around for more work. It seems they are nevertheless going to get this new role. Any appeal can be against a condition specified by the landlord or a refusal of consent where the tenant feels such condition(s)/refusal to be unreasonable, or against a deemed refusal occasioned by the landlord’s non-reply. The tribunal can then refuse the appeal or make a “consent order”. “Consent order” is defined as:
an order requiring the landlord to give the tenant notice that the landlord consents to the tenant keeping of the pet to which the appeal relates at the let property with or without such conditions as the First-tier Tribunal may specify.
Section 64D(7)
I can’t decide whether “the tenant keeping of the pet” is expressed correctly. Maybe this will be revisited for clarity.
Turning to the social rented sector, the Model Scottish Secure Tenancy Agreement is relatively quiet about pets (allowing content to be filled in at clause 2.6, with suggestions for that). As for the context of the social sector, in its preparatory work for this Bill, the Consultation on the New Deal for Tenants noted the following of the social sector:
Pets are also allowed only by agreement of the landlord but permission is usually granted unless there are reasonable reasons for not doing so. As properties in the social sector are generally unfurnished, the costs of any damage to furniture or decoration is borne by the tenant. Landlords may designate particular types of property as being unsuitable for a particular type of pet and this will be reflected in the tenancy agreement at the time a tenancy is offered.
Section 30 of the Bill inserts a new section 31A to the Housing (Scotland) Act 2001. It begins by stating, “It is a term of every Scottish secure tenancy that the tenant may keep a pet (or pets) at the house with the consent in writing of the landlord, which must not be unreasonably withheld”. The definition of “pet” tracks the private sector scheme, and similarly Ministers to make regulations about what conditions attached to keeping a pet might be reasonable and when it is reasonable to refuse consent to keep a pet. There are, however, two key differences between the private and social regimes as I see it.
The first difference is that where a social landlord does nothing in response to a tenant’s request within a month (or otherwise fails to comply with new paragraph 8F of Part 1A of Schedule 5 to the 2001 Act), that landlord is to be taken as having consented to the application. This is the opposite consequence for silence as compared to the private sector scheme.
Secondly, and unsurprisingly given tenants in the social sector have no route to the First-tier Tribunal for any other disputes, there is no specific appeal process provided. Disgruntled social tenants presumably face a trip to the sheriff court if they think their social landlord is being unreasonable. This is unlikely to be an attractive prospect, but at least it seems to be offset by the apparently more generous tradition of allowing pets in social lets in the past (in part because the tenant tends to bring their own furniture to such a property) and the default application of the new regime falling on the side of consent rather than deemed refusal.
Changes to Privately Let Property
The Bill has little to say about a social tenant making changes to the let property. When contrasted with the private sector provisions in the new Bill, this might make at first blush you think social tenants have been overlooked. This is not the case, as section 28 of the Housing (Scotland) Act 2001 already allows for them to do interior decoration and ask for permission for other works: a resource on the Shelter Scotland website explains the process for that.
There are some slight differences between the new private provisions and the existing social provisions. One of those differences also indirectly highlights a similarity: both regimes say landlords need to consent to bigger works, but that consent cannot be “unreasonably withheld” (in the social context) or “unreasonably refused” (in the private context of new section 64H of the 2016 Act). The slight change in language is, I think, insignificant.
The social regime carves out “interior decoration” from that which needs landlord consent. A social tenant can accordingly plough on with that, but will generally need consent for: alteration, improvement or enlargement of the house or of any fittings or fixtures; addition of new fittings or fixtures; and the erection of a garage, shed or other structure. (It may be that equality law considerations also mean some changes need to be allowed to happen – more on that below.) What about the private sector regime?
The model tenancy for PRT currently contains the following:
The Tenant agrees not to make any alteration to the Let Property, is fixtures or fittings, nor to carry out any internal or external decoration without the prior written consent of the Landlord.
Any request for adaptations, auxiliary aids or services under section 37 of the Equality Act 2010 or section 52 of the Housing (Scotland) Act 2006 must be made in writing to the Landlord and any other owners of the common parts, where appropriate. Consent for alterations requested under this legislation should not be unreasonably withheld. If no consent is given for the adaptations you may appeal to the Tribunal in relation to section 52 (or sheriff court in relation to section 37) within 6 months of being notified of the decision. Before doing this, you may find it helpful to discuss your circumstance with your local Citizens Advice Bureau, Shelter Scotland or the local authority for the area where the Let Property is situated.
Clause 28. Alterations
That is accordingly the baseline. This adverts to the equality law and an existing specific right to adapt a privately rented property from the 2006 Act. The new system envisages additional levels of alterations, namely “category 1 changes” and “category 2 changes”. A category 1 change needs the consent of the landlord. A “category 2 change” might need the consent of the landlord, but it can be pre-consented to in the terms of the lease. Category 2 changes have another criterion, namely that they happen six months after the commencement of the lease (and only then can consent be sought, or pre-consent be applied).
What is the difference between a category 1 change and a category 2 change? We await regulations for that. Regulations that specify one or more changes (or kinds of change) that may be made to privately let property can be made under new section 64L, and such regulations are to specify which change falls into which category. The Explanatory Notes are silent as to examples of each category, but the Engagement Questionnaire suggests “putting pictures and posters on walls” would be a category 1 change. Elsewhere in that document, one of the questions asked suggests “painting walls and installing wall shelves” could be a category 2 change.
Meanwhile, as with pets, there is power conferred on Ministers to make provision about when it is reasonable to refuse consent and about when a consent condition for an alteration is reasonable. Also as with pets, a landlord’s non-response is to be taken as a refusal, and a similar appeal regime (with identical timescales) applies for any appeal.
I’m not sure there is much more that can be said about this all at this stage, as the categorising regulations are so crucial to how this regime is operated. At least we know how the scheme will function when that comes to be clarified.
That concludes the coverage of Part 3 of the new Bill.
Part 4 – Other matters
Part 4 of the new Bill is headed “Other matters relating to tenants”. The matters covered will not affect all or perhaps even a majority of tenants, but they may be of particular importance in circumstances where they do crop up.
Tenancy deposits claimed by neither tenant nor landlord
The first of the miscellaneous matters included in Part 4 of the new Bill relates to unclaimed tenancy deposits. It has been standard practice for many years for an incoming tenant to pay a deposit that can be applied in the event of them causing damage to the let property or leaving without settling all rent payments lawfully due to the landlord. The Housing (Scotland) Act 2006 introduced the framework for regulated tenancy deposits (held by an approved tenancy deposit scheme provider (for example, SafeDeposits Scotland), rather than landlords simply holding a tenancy deposit in their own bank account), and later regulations (in force since 2012) implemented the scheme that we are now used to.
Generally speaking, at the end of a tenancy deposit funds will be returned to the tenant or (if there have been issues with the let property beyond “fair wear and tear”) applied to the landlord’s legitimate expenses. For several years now, unclaimed deposits have proved to be a bit of an issue for scheme providers (per this Law Society of Scotland news item from 2015 and this Shelter Scotland blog post from 2017). Scheme providers try to and do track down tenants when they can, but where they are unsuccessful any money would in theory go to the Crown.
The new Bill gives a framework to introduce a clear five-year period for any relevant application to be made for the repayment of a tenancy deposit. Where no such claim is made, Scottish Ministers can direct the scheme administrator of an approved scheme to transfer unclaimed deposits to them or to a fund administrator. Transferred money may then be used for the purposes of: providing or securing the provision of advice, information or assistance to private tenants in relation to their rights as tenants (or otherwise promoting or supporting their interests; preventing private tenants from becoming homeless; and paying or recovering administrative costs that are reasonably incurred when reporting on the use of that transferred money. “Private tenants” is broadly defined, so as to also include any student tenancy arrangements. Scottish Ministers will be able to change these purposes by regulations; presumably if they did modify these purposes, they would be mindful of their recent Engagement Questionnaire results about what these funds might be used for.
One other thing the Bill does is cater for former occupant with unpaid deposits who have come out of the woodwork after five years. This allows Scottish Ministers, on application, to pay an equivalent sum to that former occupant if they have a reasonable excuse for not applying in the initial five-year (provided, of course, that they would have been repaid had they made a timeous application).
Letting agent reform
The Housing (Scotland) Act 2014 introduced a scheme for the registration of letting agents (and there is now an associated Code of Practice that can be brought to bear against such letting agents, enforceable before the First-tier Tribunal). The new Bill makes some changes to: (a) the application stage (including disclosure requirements where a partnership, company or other body is the applicant); (b) ongoing reporting requirements for registered agents, allowing for regulations to be made as to what “relevant information” needs to be provided; (c) the process for cleaning up the register (including around situations when an agent no longer exists); and (d) the time period that a refusal or removal of an agent needs to be noted on the register (which is increased from one year to three years). There is also a tweak around the Scottish Ministers’ powers (or any authorised person’s powers) to obtain information and carry out inspections around monitoring compliance with the 2014 Act provisions around letting agents, to clarify that any requirement for a person to furnish information in relation to sections 52 and 53 of the 2014 Act does not apply where someone would be entitled to refuse to provide the information in, or for the purposes of, proceedings in a court in Scotland.
I have absolutely nothing to say about any of the letting agent reforms, other than to opine they all seem sensible enough.
Ending joint tenancies
House-share arrangements, such that there are co-tenants (or joint tenants) sharing in a PRT have caused a few issues. I covered this relatively recently in my “Joint tenancy trap” blog post. The new Bill seeks to address this by way of section 38, headed “Private residential tenancies: ending a joint tenancy”.
Section 38 amends sections 48 and 49 of the 2016 Act and inserts a new section 48A between those sections. Section 38 of the Bill does this sequentially in terms of what will be the 2016 Act, adopting an order which amends section 48, introduces new section 48A, then finally amends section 49. I will do likewise.
The amended section 48 caters for a joint tenancy situation in that it allows one of the joint tenants to end a PRT (which that tenant will do by giving the landlord a notice that meets the statutory requirements). It does this by changing what reference to “a tenant” means in section 48, such that all joint tenants will no longer need to act as a polity in order to trigger its effects. Section 48 is also modified so that the tenancy that is under threat does not come to an end if the interest of the terminator joint tenant is assigned to someone else before the tenancy was due to come to an end (normally 28 days after the relevant notice, or such other period as might have been agreed by all parties).
New section 48A introduces a notification system for the other joint tenants, such that they can’t simply have the rug pulled from under them. This requires the joint tenant who wants out to give a written pre-notice to every other joint tenant and the landlord at least two months before the ultimate notice to end the tenancy. Further requirements of that pre-notice are to be catered for by regulations, but that’s not all that must happen before one joint tenant can bring the whole arrangement crashing down.
First, the ultimate notice to terminate the tenancy that follows on from the pre-notice must be given within 28 days of the two-month pre-notice period coming to an end. Second, that ultimate notice must be accompanied by a statement that a pre-notice has been given to every other joint tenant, and yet another a regulation-making power is given to the Scottish Ministers to enable them to provide that the notice must be fortified with the supporting evidence that they specify.
Finally, section 49 is modified so that it works in situations where there is joint tenancy and one of them wants out, such that in one circumstance the word “tenant” can mean a single “joint tenant” (i.e. the one serving the notice), but in all other circumstances of that section the “tenant” means all of the joint tenants as polity (such that, for example, any departure date prior to the expiry of the usual 28 day period would need to be agreed by all parties).
These provisions took me a little bit of time to get my head around. Comprehension difficulties aside, I do think they work, and I also think they go some way to allowing a joint tenant not to be trapped in a situation (as Douglas Bain and Mitchell Skilling blogged about some years ago) whilst also ensuring a tenant cannot torpedo a PRT for their (likely former) friends without giving them a chance to make different plans, or at the very least brace themselves for a few months. I’ll look forward to hearing what the various interested parties think about this as the Bill progresses through Holyrood.
Converting older tenancies
Another miscellaneous provision, and the last one that I will consider here, allows for the conversion of all existing assured tenancies to PRTs. This would apply to private lets entered into between 2 January 1989 and 1 December 2017 that are still subsisting as assured tenancies to this day and are still governed by Housing (Scotland) Act 1988. Section 40 of the new Bill will allow regulations to be made (after suitable consultation) so as to trigger this mass conversion event (but those regulations must afford a period of at least a year before this conversion happens).
The powers that would be conferred here need to be differentiated from individual conversion opportunities that already exist. The party-instigated conversion in section 46A of the Housing (Scotland) Act 1988 allows assured tenancies to be converted to PRTs by agreement between the landlord and the tenant. Separately, in terms of section 31A of the 1988 Act assured tenancies can also become a PRT when a sole tenant dies and their resident spouse or civil partner (or someone living with the deceased as if that domestic relationship was in place) wishes to continue to live there as their principal home and the conditions in section 31 are met.
Scottish Ministers will need to be careful before making a new blanket conversion diktat. There are also human rights issues, particularly in terms of the protection of the peaceful enjoyment of possessions, that must be considered. Sure, blanket conversion will have the benefit of simplifying things (not least for solicitors and tribunal members, who will then be able to gravitate to the 2016 Act with impunity), but there are quite a few differences between the regimes. One example is that an assured tenancy does not afford an eviction ground related to the landlord wishing to sell with vacant possession. Other examples come from this new Bill, such that only PRTs are affected by any rent control and the rights to personalise the let property by the introduction of a pet or the making of alterations (given the provisions are (deliberately?) not drafted widely enough to catch assured tenancies). The policy memorandum for the Bill (at para 328) seems to solely view the human rights compliance of the “powers to convert 1988 Act tenancies into 2016 Act tenancies” through the prism of “the terms of a landlord’s tenancy agreement changing”, but it must be remembered it is also altering the terms of the tenant’s tenancy agreement, as my (deliberately chosen) first example shows.
Blanket conversion also does not have the same protection from critique that individual conversion does – for example, if landlord and tenant choose to amend their agreement, that’s on them, and in a succession situation the incoming tenant benefits from a PRT when they would otherwise have had nothing and thus is in less of a position to argue for an assured tenancy. Furthermore, blanket conversion may have an apparent simplicity at a macro level, but the possible complications at a micro level need to be understood and considered.
I remain to be convinced blanket conversion is appropriate. In an ideal world, my own preference would be to allow the new rent and personalisation provisions of the Bill to apply to assured tenancies as well as PRTs, and then do all that is possible to not jump the gun in terms of converting every assured tenancy to a PRT until we really are sure that the remaining numbers of assured tenants are truly trivial. And yes, this would really be “in an ideal world”: I appreciate and acknowledge that bringing rent control areas and pets/alterations into the 1988 Act would be quite a monumental effort in drafting terms. A secondary option might be to change the proposed scheme to allow assured tenancy tenants to opt out of automatic conversion, should they wish to (for example) preserve their eviction grounds as they are. I’ll be keeping an eye on this aspect of the new Bill as it moves through Holyrood.
Conclusion
That draws to a close this third blog post on the miscellaneous provisions of the new Housing Bill. Coupled with the earlier posts on rent and evictions, that also concludes my coverage of residential tenancy matters. The next post will consider Part 5 of the Bill, and the homelessness provisions therein.
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