Housing (Scotland) Act 1988 (c. 43)

(The document as of February, 2008)

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Section 4.

SCHEDULE 3 Scottish Homes: Amendments of Housing Associations Act 1985

1 (1) For subsection (1) of section 3 there shall be substituted the following subsections--

" (1) A register of housing associations shall be maintained by each of the following, namely--

(a) the Housing Corporation; and

(b) Scottish Homes,

(in this Part referred to as registration authorities) and shall be open to inspection at their head office at all reasonable times.

(1A) In this Part--

"the register"--

(a) in relation to a registration authority, means the register maintained under this section by that authority;

(b) in relation to a housing association which is registered or eligible for registration in a register maintained under this section, means that register;

"the registration authority", in relation to a housing association which is registered or eligible for registration in a register maintained under this section, means the registration authority by whom that register is maintained. " .

(2) In subsection (2) of that section for the words "the register of housing associations" there shall be substituted the words "a register".

2 For subsection (1) of section 4 there shall be substituted the following subsections--

" (1) A housing association is eligible for registration in the register maintained by the Housing Corporation if it is either a registered charity or a society registered under the 1965 Act which--

(a) has its registered office for the purposes of that Act in England and Wales; and

(b) fulfils the conditions in subsection (2).

(1A) A housing association is eligible for registration in the register maintained by Scottish Homes if it is a society registered under the 1965 Act which--

(a) has its registered office for the purposes of that Act in Scotland; and

(b) fulfils the conditions in subsection (2). " .

3 (1) In subsection (1) of section 5--

(a) for the words "The Housing Corporation" there shall be substituted the words "A registration authority";

(b) after the word "registration", in both places where it occurs, there shall be inserted the words "in the register,";

(2) For subsection (2) of that section there shall be substituted the following subsection--

" (2) Nothing in subsection (1) shall require the registration authorities to establish the same criteria; and a registration authority may vary any criteria established by them under that subsection. " .

(3) In subsection (3) of that section for the words "the Corporation" there shall be substituted the words "a registration authority".

(4) For subsection (4) of that section there shall be substituted the following subsection--

" (4) Where at any time a body is, or was, on a register maintained under section 3, then, for all purposes other than rectification of that register, the body shall be conclusively presumed to be, or to have been, at that time a housing association eligible for registration in that register. " .

4 (1) In subsection (2) of section 6 for the words "the Housing Corporation" there shall be substituted the words "a registration authority" and for the words "the Corporation" there shall be substituted the words "the authority".

(2) In subsections (3) to (5) of that section for the words "the Corporation" there shall be substituted--

(a) in the first place where they occur in each subsection, the words "the registration authority";

(b) in each other place where they occur, the words "the authority".

(3) In subsection (4) of that section, after paragraph (a) there shall be inserted the following paragraph--

" (aa) a grant or a loan under section 2(2) of the Housing (Scotland) Act 1988; " .

5 (1) In subsection (1) of section 7 for the words from "a decision" to the end there shall be substituted the words " a decision to remove it from a register maintained under section 3 may appeal against that decision--

(a) where it is a decision of the Housing Corporation, to the High Court;

(b) where it is a decision of Scottish Homes, to the Court of Session. " .

(2) In subsections (2) and (3) of that section for the words "the Corporation" there shall be substituted the words "the authority".

6 (1) In subsection (1) of section 9 for the words "the Housing Corporation, by order under the seal of the Corporation" there shall be substituted the words "the relevant authority".

(2) In subsections (2) and (3) of that section for the words "the Corporation", in each place where they occur, there shall be substituted the words "the relevant authority".

(3) For subsection (5) of that section there shall be substituted the following subsection--

" (5) For the purposes of this section--

"disposition" means sale, lease, mortgage, charge or any other disposal;
"the relevant authority"--

(a) in relation to a disposition of land by a registered housing association, means the registration authority;

(b) in relation to a disposition of grant-aided land in England and Wales by an unregistered housing association, means the Housing Corporation;

(c) in relation to a disposition of grant-aided land in Scotland by an unregistered housing association, means Scottish Homes;

and the references in this section to the relevant authority's consent are, in the case of the Housing Corporation, references to an order under its seal giving its consent and, in the case of Scottish Homes, references to its consent in writing. " .

7 In section 10(1) for the words from "the Charity Commissioners", in the second place where they occur, to the end there shall be substituted the words " but before making an order in such a case, the Charity Commissioners shall--

(a) where the land proposed to be disposed of is in England and Wales, consult the Housing Corporation;

(b) where that land is in Scotland, consult Scottish Homes; " .

8 In section 13(3) for the words "the Housing Corporation" there shall be substituted the words "the registration authority".

9 (1) In subsection (1) of section 14 for the words "the Corporation" there shall be substituted the words "the registration authority".

(2) In subsection (2) of that section for the words "the Corporation" there shall be substituted the words "the registration authority".

10 In section 15--

(a) in subsection (2) at the end there shall be added the following paragraph--

" (f) in the case of housing associations registered in the register maintained by Scottish Homes, payments made or benefits granted by such an association with the approval of Scottish Homes (which approval may be given only in relation to a class or classes of case). " ;

(b) in subsection (3) for the words "the Housing Corporation" there shall be substituted the words "the registration authority".

11 In section 15A--

(a) in subsection (3), for the words from "is", where second occurring, onward there shall be substituted the words--

" (a) was, prior to the specified date, designated as such by the Housing Corporation ; or

(b) is, on or after that date, designated as such by Scottish Homes, " ;

and, in this subsection, "specified date" has the same meaning as in section 3 of the Housing (Scotland) Act 1988; and

(b) in subsection (4)--

(i) for the words "The Housing Corporation" there shall be substituted the words "Scottish Homes"; and

(ii) in paragraph (b) after the word "designation" there shall be inserted the words "(including a designation made by the Housing Corporation under subsection (3) above as originally enacted)".

12 (1) In subsection (1) of section 16 for the words "The Housing Corporation" there shall be substituted the words "The registration authority".

(2) In subsections (2) and (3) of that section for the words "the Corporation" there shall be substituted the words "the registration authority".

(3) In subsection (4) of that section for the words from "the order" to the end there shall be substituted the words " the order--

(a) where it is an order of the Housing Corporation, to the High Court;

(b) where it is an order of Scottish Homes, to the Court of Session. " .

13 In section 17 for the words "The Housing Corporation" there shall be substituted the words "The registration authority" and for the words "the Corporation", in each place where they occur, there shall be substituted the words "the authority".

14 (1) In subsection (2) of section 19 for the words "the Housing Corporation" there shall be substituted the words "the registration authority".

(2) In subsection (3) of that section for the words "the Corporation's consent, given by order under the seal of the Corporation" there shall be substituted the words "the registration authority's consent".

(3) After subsection (3) of that section there shall be inserted the following subsection--

" (3A) The reference in subsection (3) to the registration authority's consent is, in the case of the Housing Corporation, a reference to an order under its seal giving its consent and, in the case of Scottish Homes, a reference to its consent in writing. " .

15 (1) In subsections (2) and (5) of section 21 for the words "the Housing Corporation's consent" and "the Corporation's consent" there shall be substituted the words "the registration authority's consent".

(2) In subsection (4) of that section for the words "the Corporation" there shall be substituted the words "the registration authority".

(3) For subsection (6) of that section there shall be substituted the following subsection--

" (6) The references in this section to the registration authority's consent are, in the case of the Housing Corporation, references to an order under its seal giving its consent and, in the case of Scottish Homes, references to its consent in writing. " .

16 In section 22(1) for the words "The Housing Corporation" there shall be substituted the words "The registration authority".

17 (1) In subsection (1) of section 23 for the words "the Housing Corporation" there shall be substituted the words "the registration authority" and for the words "the Corporation" there shall be substituted the words "the authority".

(2) In subsections (2) to (5) of that section for the words "the Corporation" there shall be substituted--

(a) in the first place where they occur in each subsection, the words "the registration authority";

(b) in each other place where they occur, the words "the authority".

18 In sections 24(4) and 27(2) for the words "the Housing Corporation" there shall be substituted the words "the registration authority".

19 (1) In subsection (1) of section 28 for the words "The Housing Corporation" there shall be substituted the words "The registration authority" and for the words "the Corporation's staff" there shall be substituted the words "the authority's staff".

(2) In subsection (4) of that section for the words "the Corporation", in both places where they occur, there shall be substituted the words "the authority".

20 In section 29 for the words "the Housing Corporation" there shall be substituted the words "the registration authority" and for the words "the Corporation", in each place where they occur, there shall be substituted the words "the authority".

21 (1) In subsection (1) of section 30 for the words "the Housing Corporation" there shall be substituted the words "the registration authority" and for the words "the Corporation", in both places where they occur, there shall be substituted the words "the authority".

(2) In subsections (2), (3) and (5) of that section for the words "the Corporation" there shall be substituted the words "the authority".

(3) In subsection (4) of that section for the words from "the order" to the end there shall be substituted the words " the order--

(a) where it is an order of the Housing Corporation, to the High Court;

(b) where it is an order of Scottish Homes, to the Court of Session. " .

22 (1) In subsections (1) and (2) of section 32 for the words "the Housing Corporation" there shall be substituted the words "the registration authority" and for the words "the Corporation" there shall be substituted the words "the authority".

(2) In subsections (3) and (5) of that section for the words "the Corporation" there shall be substituted--

(a) in the first place where they occur in each subsection, the words "the registration authority";

(b) in each other place where they occur, the words "the authority".

23 In section 40, in the entry relating to "register" and related expressions after the word "registration" there shall be inserted the words "registration authority" and for the words "section 3(2)" there shall be substituted the words "section 3".

24 In paragraph 1 of Schedule 2 for the words "the Housing Corporation" there shall be substituted the words "the registration authority".

Section 12.

SCHEDULE 4 Tenancies which cannot be Assured Tenancies

Tenancies entered into before commencement

1 A tenancy which is entered into before, or pursuant to a contract made before, this Schedule comes into force.

Tenancies at a low rent

2 (1) A tenancy under which, at any time after this Schedule comes into force, either no rent is payable or the rent payable is less than that specified by order made by the Secretary of State, but no tenancy which is or, at any time, was an assured tenancy shall cease to be an assured tenancy by virtue only of this paragraph of this Schedule.

(2) In determining whether the rent under a tenancy falls within sub-paragraph (1) above, there shall be disregarded such part (if any) of the sums payable by the tenant as is or was expressed (in whatever terms) to be payable in respect of services, repairs, maintenance or insurance, unless it could not have been regarded by the parties to the tenancy as a part so payable.

(3) An order under sub-paragraph (1) above may specify different rents in relation to--

(a) different kinds of houses;

(b) different areas.

(4) An order under sub-paragraph (1) above may specify rent by reference to such periods or times or such other factors or such combinations thereof as may be specified in the order.

Tenancies of shops

3 A tenancy to which the [1949 c. 25.] Tenancy of Shops (Scotland) Act 1949 applies.

Licensed premises

4 A tenancy under which the house consists of or comprises premises licensed for the sale of alcoholic liquor for consumption on the premises.

Tenancies of agricultural land

5 (1) A tenancy under which agricultural land, exceeding two acres, is let together with the house.

(2) In this paragraph "agricultural land" has the same meaning as in section 115(1) of the [1984 c. 58.] Rent (Scotland) Act 1984.

Tenancies of agricultural holdings

6 A tenancy under which the house--

(a) is comprised in an agricultural holding (within the meaning of the [1949 c. 5.] Agricultural Holdings (Scotland) Act 1949); and

(b) is occupied by the person responsible for the control (whether as tenant or as servant or agent of the tenant) of the farming of the holding.

Lettings to students

7 (1) A tenancy which is granted to a person who is pursuing, or intends to pursue, a course of study provided by a specified educational institution and is so granted either by that institution or by another specified institution or body of persons.

(2) In sub-paragraph (1) above "specified" means specified, or of a class specified, for the purposes of this paragraph by regulations made by the Secretary of State.

Holiday lettings

8 A tenancy the purpose of which is to confer on the tenant the right to occupy the house for a holiday.

Resident landlords

9 (1) A tenancy in respect of which the following conditions are fulfilled--

(a) that the house forms part only of a building;

(b) subject to sub-paragraph (2) below, that the tenancy was granted by a person who, at the time when he granted it, occupied as his only or principal home another house which also forms part of the building;

(i) to or from the house by way of that other house; or

(ii) to or from that other house by way of the house

(whether or not that access was available to the tenant as of right); and

(d) subject to sub-paragraph (3) below, at all times since the tenancy was granted the interest of the landlord under the tenancy has belonged to a person who, at the time he owned that interest, occupied as his only or principal home another house which also formed part of the building.

(2) The condition in sub-paragraph (1)(b) above shall be deemed to be fulfilled if the tenancy was granted by trustees and, at the time when the tenancy was granted, the interest of the landlord under the tenancy thereby created was held on trust for a person who was entitled to the liferent or to the fee or a share of the fee of that interest and who occupied as his only or principal home a house which forms part of the building referred to in sub-paragraph (1)(a) above.

(3) In determining whether the condition in sub-paragraph (1)(d) above is at any time fulfilled with respect to a tenancy, there shall be disregarded--

(a) any period of not more than 28 days beginning with the date of the conveyance of the interest of the landlord under the tenancy to an individual who, during that period, does not occupy as his only or principal home another house which forms part of the building concerned;

(b) if, within a period falling within paragraph (a) above, the individual concerned notifies the tenant in writing of his intention to occupy as his only or principal home another such house as is referred to in that paragraph, the period beginning with the date of the conveyance mentioned in that paragraph and ending--

(i) at the expiry of the period of 6 months beginning on that date; or

(ii) on the date on which the interest of the landlord under the tenancy ceases to be held by that individual; or

(iii) on the date on which the condition in sub-paragraph (1)(c) above again applies,

whichever is the earliest; and

(c) any period of not more than 24 months beginning with the date of death of the landlord under the tenancy during which the interest of the landlord under the tenancy is vested in his executor.

(4) Throughout any period which, by virtue of sub-paragraph (3)(a) or (b) above, falls to be disregarded for the purpose of determining whether the condition in sub-paragraph (1)(d) above is fulfilled with respect to a tenancy, no order for possession of the house subject to that tenancy shall be made, other than an order which might be made if that tenancy were or, as the case may be, had been an assured tenancy.

(5) During any period--

(a) when--

(i) the interest of the landlord under the tenancy referred to in sub-paragraph (1) above is vested in trustees; and

(ii) that interest is held on trust for a person who is entitled to the liferent or to the fee or a share of the fee of that interest and who occupies as his residence a house which forms part of the building referred to in sub-paragraph (1)(a) above;

(b) of not more than 24 months beginning with the date of death of the occupier referred to in sub-paragraph (a)(ii) above and ending with the date of occupation of the house by any other person who is entitled to the liferent or to the fee or to a share of the fee of that interest,

the condition in sub-paragraph (1)(d) above shall be deemed to be fulfilled and, accordingly, no part of that period shall be disregarded by virtue of sub-paragraph (3) above.

(6) This paragraph does not apply to a tenancy of a house which forms part of a building if the tenancy is granted to a person who, immediately before it was granted, was an assured tenant of that house or of any other house in that building.

(7) For the purposes of this paragraph--

(a) "conveyance" includes the grant of a tenancy and any other conveyance or transfer other than upon death;

(b) "the date of the conveyance" means the date on which the conveyance was granted, delivered or otherwise made effective.

Crown tenancies

10 A tenancy under which the interest of the landlord 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 but not including such a tenancy if it is under the management of the Crown Estate Commissioners.

Local authority and other tenancies

11 A tenancy under which the interest of the landlord belongs to--

(a) a regional, islands or district council, or a joint board or joint committee as respectively defined by the [1973 c. 65.] Local Government (Scotland) Act 1973, or the common good of an islands or district council or any trust under the control of a regional, islands or district council;

(b) a development corporation within the meaning of the [1968 c. 16.] New Towns (Scotland) Act 1968;

(d) Scottish Homes;

(e) a co-operative housing association within the meaning of section 1 of the [1985 c. 69.] Housing Associations Act 1985; and

(f) an urban development corporation within the meaning of Part XVI of the [1980 c. 65.] Local Government, Planning and Land Act 1980.

Shared ownership agreements

12 A tenancy under a shared ownership agreement within the meaning of the Housing Associations Act 1985.

Transitional cases

13 (1) A protected tenancy within the meaning of the [1984 c. 58.] Rent (Scotland) Act 1984.

(2) A housing association tenancy, being a tenancy to which Part VI of that Act applies.

(3) A secure tenancy within the meaning of Part III of the [1987 c. 26.] Housing (Scotland) Act 1987.

Section 18.

SCHEDULE 5 Grounds for Possession of Houses let on Assured Tenancies

Part I Grounds on which Sheriff must order Possession

Ground 1

Not later than the beginning of the tenancy the landlord (or, where there are joint landlords, any of them) gave notice in writing to the tenant that possession might be recovered on this Ground or the sheriff is of the opinion that it is reasonable to dispense with the requirement of notice and (in either case)--

(a) at any time before the beginning of the tenancy, the landlord who is seeking possession or, in the case of joint landlords seeking possession, at least one of them occupied the house as his only or principal home; or

(b) the landlord who is seeking possession or, in the case of joint landlords seeking possession, at least one of them requires the house as his or his spouse's only or principal home, and neither the landlord (or, in the case of joint landlords, any one of them) nor any other person who, as landlord, derived title from the landlord who gave the notice mentioned above acquired the landlord's interest in the tenancy for value.

Ground 2

The house is subject to a heritable security granted before the creation of the tenancy and--

(a) as a result of a default by the debtor the creditor is entitled to sell the house and requires it for the purpose of disposing of it with vacant possession in exercise of that entitlement; and

(b) either notice was given in writing to the tenant not later than the date of commencement of the tenancy that possession might be recovered on this Ground or the sheriff is satisfied that it is reasonable to dispense with the requirement of notice.

Ground 3

The house is let under a tenancy for a specified period not exceeding eight months and--

(a) not later than the date of commencement of the tenancy the landlord (or, where there are joint landlords, any of them) gave notice in writing to the tenant that possession might be recovered under this Ground; and

(b) the house was, at some time within the period of 12 months ending on that date, occupied under a right to occupy it for a holiday;

and for the purposes of this Ground a tenancy shall be treated as being for a specified period--

(i) not exceeding eight months, if it is determinable at the option of the landlord (other than in the event of an irritancy being incurred) before the expiration of eight months from the commencement of the period of the tenancy; and

(ii) exceeding eight months, if it confers on the tenant an option for renewal of the tenancy for a period which, together with the original period, exceeds eight months, and it is not determinable as mentioned in paragraph (i) above.

Ground 4

Where the house is let under a tenancy for a specified period not exceeding 12 months and--

(b) at some time within the period of 12 months ending on that date the house was subject to such a tenancy as is referred to in paragraph 7(1) of Schedule 4 to this Act;

and for the purposes of this Ground a tenancy shall be treated as being for a specified period--

(i) not exceeding 12 months, if it is determinable at the option of the landlord (other than in the event of an irritancy being incurred) before the expiration of 12 months from the commencement of the period of the tenancy; and

(ii) exceeding 12 months, if it confers on the tenant an option for renewal of the tenancy for a period which, together with the original period, exceeds 12 months, and it is not determinable as mentioned in paragraph (i) above.

Ground 5

The house is held for the purpose of being available for occupation by a minister or a full-time lay missionary of any religious denomination as a residence from which to perform the duties of his office and--

(a) not later than the beginning of the tenancy the landlord (or, where there are joint landlords, any of them) gave notice in writing to the tenant that possession might be recovered on this ground; and

(b) the sheriff is satisfied that the house is required for occupation by such a minister or missionary as such a residence.

Ground 6

The landlord who is seeking possession or, where the immediate landlord is a registered housing association within the meaning of the [1985 c. 69.] Housing Associations Act 1985, a superior landlord intends to demolish or reconstruct the whole or a substantial part of the house or to carry out substantial works on the house or any part thereof or any building of which it forms part and the following conditions are fulfilled (and in those conditions the landlord who is intending to carry out the demolition, reconstruction or substantial works is referred to as "the relevant landlord")--

(a) either--

(i) the relevant landlord (or, in the case of joint relevant landlords, any one of them) acquired his interest in the house before the creation of the tenancy; or

(ii) none of the following persons acquired his interest in the house for value--

(a) the relevant landlord (or, in the case of joint relevant landlords, any one of them);

(b) the immediate landlord (or, in the case of joint immediate landlords, any one of them), where he acquired his interest after the creation of the tenancy;

(c) any person from whom the relevant landlord (or any one of joint relevant landlords) derives title and who acquired his interest in the house after the creation of the tenancy; and

(b) the relevant landlord cannot reasonably carry out the intended work without the tenant giving up possession of the house because--

(i) the work can otherwise be carried out only if the tenant accepts a variation in the terms of the tenancy and the tenant refuses to do so;

(ii) the work can otherwise be carried out only if the tenant accepts an assured tenancy of part of the house and the tenant refuses to do so; or

(iii) the work can otherwise be carried out only if the tenant accepts either a variation in the terms of the tenancy or an assured tenancy of part of the house or both, and the tenant refuses to do so; or

(iv) the work cannot otherwise be carried out even if the tenant accepts a variation in the terms of the tenancy or an assured tenancy of only part of the house or both.

Ground 7

The tenancy has devolved under the will or intestacy of the former tenant and the proceedings for the recovery of possession are begun not later than twelve months after the death of the former tenant or, if the sheriff so directs, after the date on which, in his opinion, the landlord (or, where there are joint landlords, any of them) became aware of the former tenant's death.

For the purposes of this Ground, the acceptance by the landlord of rent from a new tenant after the death of the former tenant shall not be regarded as creating a new tenancy, unless the landlord agrees in writing to a change (as compared with the tenancy before the death) in the amount of the rent, the period of the tenancy, the premises which are let or any other term of the tenancy.

Ground 8

Both at the date of the service of the notice under section 19 of this Act relating to the proceedings for possession and at the date of the hearing, at least three months rent lawfully due from the tenant is in arrears.

Part II Grounds on which Sheriff may order Possession

Ground 9

Suitable alternative accommodation is available for the tenant or will be available for him when the order for possession takes effect.

Ground 10

The following conditions are fulfilled--

(a) the tenant has given a notice to quit which has expired; and

(b) the tenant has remained in possession of the whole or any part of the house; and

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