First Commencement Order under Housing (Scotland) Act 2014

The Scottish Government has released the first order appointing commencement dates for various provisions of the Housing (Scotland) Act 2014.

Following on from her previous article on the 2014 Act receiving Royal Assent, Collette Miller, solicitor within Harper Macleod's Public Sector and Housing Team, takes a look at some of the specific provisions which are coming into effect by virtue of the Housing (Scotland) Act 2014 (Commencement No. 1, Transitional and Saving Provisions) Order 2014.

End of Right to Buy

The long-anticipated end date for abolition of Right to Buy ('RTB') has now been confirmed as 1 August 2016. As from this date, tenants will no longer have right to purchase their homes from social landlords under the RTB legislation.

However, there are saving provisions which allow RTB transactions to complete where the application to purchase under RTB has been submitted to the social landlord before 1 August 2016. The RTB legislation which is in effect immediately before the end date (i.e. on 31 July 2016) will apply to such applications, as well as any contract and purchase following on from such an application.

In the meantime, the Commencement Order brings into effect from 20 November 2014 a further limitation to new tenants' RTB, by restricting their qualifying continuous occupation period to occupation as a tenant only, as opposed to occupation as a family member, for example. Also, the reporting provisions and the information collection in relation to tenants eligible for RTB provisions are repealed as from 20 November 2014. The information collection provisions in relation to sale of houses under RTB are repealed as from 1 July 2017.

Tenant Consultation for Subsidiary RSLs

As from 20 November 2014, any Registered Social Landlord (RSL) looking to become a subsidiary of another body must first undertake a consultation with their tenants (whether or not tenants are members of the organisation) as a pre-condition of the Scottish Housing Regulator giving its required consent to the arrangement. The procedure which RSLs are required to follow in this circumstance is contained within sections 114 to 121 of the Housing (Scotland) Act 2010. This mirrors the procedure which applies to disposals such as a stock transfer which result in a change of landlord in terms of section 113 of the 2010 Act.

The only exception to this new consultation requirement is where the RSL's viability is in jeopardy for financial reasons and a person takes a notifiable step towards insolvency against the RSL and the Regulator considers that waiving the need for a tenant ballot would substantially reduce the likelihood of a person taking such a step.

RSLs currently in the process of becoming a subsidiary need not panic though. The Commencement Order contains transitional provisions which provide that the consultation requirement will not apply to constitutional partnership proposals where the Regulator's consent to the RSL's change of constitution has been requested prior to 20 November 2014.

The Commencement Order does not expand on what is required for a RSL to make a request to the Regulator for consent (the consent being required in order to amend the prospective subsidiary's constitution, pursuant to section 93 of the 2010 Act) which presumably means that a simple letter of request, received by the Regulator prior to the 20 November deadline, is sufficient to ensure that the consent process is governed by the regime in the 2010 Act. In practice, however, the Regulator may take the view that a request for consent is only acceptable to it if it is submitted at a time, and supported by additional information, as prescribed by the Regulator's own guidance and procedures.

Discharge of NoPL

As from 16 December 2014, property owners will be able to register a Notice of Discharge in respect of Notices of Potential Liability for Costs (NoPL) where the NoPL has not expired, the liability for costs has been fully discharged and the person who registered the NoPL consents to the application to register the Notice of Discharge.

Scottish Ministers are expected to produce the prescribed statutory forms of the Notice of Discharge prior to this date under the Title Conditions (Scotland) Act 2003 and the Tenements (Scotland) Act 2004.

Forthcoming Consultations, Regulations and Guidance by Scottish Ministers

Various provisions only come into effect under the Commencement Order in order to enable Scottish Ministers to commence consultation, make regulations or issue guidance under the 2014 Act.

We can expect consultations from Scottish Ministers, or the Scottish Housing Regulator as the case may be, on:

  • Regulations on rules of priority in the allocation of housing;
  • Guidance on the determination of a minimum period for an application for housing to remain in force;
  • Guidance on the creation, extension and termination of Short Scottish Secure Tenancies based on antisocial behaviour;
  • Guidance on eviction from a Scottish Secure Tenancy on antisocial behaviour grounds;
  • Guidance from the Regulator on a new exception to the tenant consultation requirement where there is a transfer of assets following inquiries;
  • Regulations on Enhanced Enforcement Areas in private rented housing;
  • Regulations on a Letting Agent Code of Practice.

Scottish Ministers may make regulations in relation to:

  • The new First Tier Tribunal's remit in relation to houses in multiple occupation;
  • Varying or extending the repairing standard and a landlord's duty to ensure a house meets that standard;
  • Private Rented Housing Panel procedures for third party applications in respect of the repairing standard;
  • Mobile home sites with permanent residents, and specifically:
    • Charging of fees for relevant permanent site application to a local authority;
    • Time limits for local authorities determining relevant permanent site applications;
    • Procedure and appeals in relation to the issue, renewal, transfer, transmission and revocation of a Part 1A site licence;
    • Appointment of an interim manager of site where Part 1A site licence issued; and
  • RSLs registering a charge against an owner-occupier's property to recover the owner's share of the cost of common works.

Guidance is also expected from Scottish Ministers in respect of:

  • Carrying out of electrical safety inspections to meet the repairing standard; and
  • Interpretation of various terms in relation to Part 1A site licences.

Miscellaneous Provisions

Other provisions which come into effect with the Commencement Order from 20 November 2014 include, but are not limited to, those relating to:

  • Definitions contained within Part 4 of the 2014 Act, which deals with letting agents. This includes the meaning of 'letting agency work', 'house', 'landlord' and 'tenant';
  • Disqualification of First-tier Tribunal members from exercising certain functions;
  • Disqualification from membership of the Private Rented Housing Panel;
  • Delegation of certain functions by the president of the Private Rented Housing Panel; and
  • Additional limitation on ground for possession of dwellinghouses let as protected tenancies under the Rent (Scotland) Act 1984 where the house is required by the landlord for occupation as a tenancy tied to employment (subject to a saving provision in relation to any certificate granted by the Scottish Ministers under that case prior to 20 November 2014).

The remaining provisions of the 2014 Act will come into effect on such other date or dates as the Scottish Government may appoint.

Get in touch

If you would like to find out more about the implications of the 2014 Act, please contact Collette Miller, Solicitor on 0141 227 9342 or collette.miller@harpermacleod.co.uk.