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Housing (Scotland) Act - Tenancy / Right to buy advice ?
Hi All,
I was wondering if any of you might be able to help with a couple of housing/tenancy related questions I have, or if you might be able to point me in the right direction for the correct advice?
Currently, I live in my (elderly & retired) fathers house which is rented from our local authority. The current tenancy is an old-style Secure Tenancy under the 1987 Housing Scotland Act (as amended by the Housing Scotland Act 2001), and therefore there is the 'preserved' right to buy, with the maximum 60% discount. It had always been our intention to purchase the property, however due to circumstances over the years this never came to fruition. With the recent and upcoming changes to the Housing (Scotland) Act, it has become a more urgent matter, in that we need to purchase the property before the right to do so is lost.
Having researched the legislation, it appears to me that I have 2 options. It is my understanding that under the Housing (Scotland) Act 1987, part 3, S.61 p.6(a) I can jointly purchase the propertly with my father:
"(6)A tenant may exercise his right to purchase, if he so wishes, together with one or more members of his family acting as joint purchasers, provided—
(a)that such members are at least 18 years of age, that they have, during the period of 6 months ending with the date of service of the application to purchase, had their only or principal home with the tenant and that their residence in the house is not a breach of any obligation of the tenancy"
In itself, this is not really a problem, however I do not have cash funds to enable the purchase, so it would need to be mortgaged. I have questions around whether the legislation allows for just one of the 'joint purchasers' to obtain the mortgage, as it seems to me that if it had to be a joint mortgage, this would not be possible due to my fathers age.
The other option I can see in the legislation is that any joint tenant can purchase the property individually, if agreed by any other joint tenants (Housing (Scotland) Act 1987, part 3, S.61 p.1):
"61 Secure tenant’s right to purchase
(1)Notwithstanding anything contained in any agreement, a tenant of a house to which this section applies (or such one or more of joint tenants as may be agreed between them) shall, subject to this Part, have the right to purchase the house at a price fixed under section 62."
The question around this point that I cannot find an answer to in the legislation is if I were to become a joint tenant, would this be under the terms of the original tenancy agreement, or would it create a new tenancy agreement with the 'modern' RTB terms, or perhaps even with no RTB ?
Our local authority have this statement on their Joint Tenancy Request form (my emphasis):
"Adding a joint tenant could affect your right to buy your home if you were a tenant before 30th September 2002. The law is not clear. However, if you add a joint tenant there is a chance that you may lose your ‘preserved’ right to buy and move on to the ‘modernised’ right to buy which was introduced by the Housing (Scotland) Act 2001. The Housing (Scotland) Act 2010 made further changes to the right to buy. Brand new tenancies created after 1 March 2011 will have no right to buy entitlement. It is recommended that you seek independent legal advice before adding a joint tenant, in order to check if your rights are affected."
It seems to me that they do not want to commit to a position on this, however their tenants handbook states that you can apply for a joint tenant to be added to your tenancy, the wording of which suggests the joint tenancy would still be under the 1987 (2001) regs, as opposed to a new tenancy under the 2010, or later, regs.
However, the Housing (Scotland) Act 2001 states the following: Part 2, Ch 1, S.11, paragraphs 5 & 6:
"(5)The tenant under a Scottish secure tenancy and one or more other individuals falling within subsection (6) may jointly apply in writing to the landlord for the other individuals to be included with the tenant as joint tenants under the tenancy; and the landlord must consent to the alteration of the tenancy unless it has reasonable grounds for not doing so.
(6)An individual falls within this subsection if the house in question is, or is intended to be, that person’s only or principal home."
Also, section 24, paragraphs 1 (a), (b), and 2 seem applicable:
"24 Restriction on variation of tenancy
(1)Despite anything in the tenancy agreement, the terms of a Scottish secure tenancy may not be varied except—
(a)by written agreement between the landlord and the tenant, or
(b)under section 25 or 26.
(2)A variation referred to in subsection (1) does not terminate the tenancy."
I would appreciate any thoughts or advice you might be able to give on these matters, and look forward to hearing your views.
Many thanks,
Chris.
I was wondering if any of you might be able to help with a couple of housing/tenancy related questions I have, or if you might be able to point me in the right direction for the correct advice?
Currently, I live in my (elderly & retired) fathers house which is rented from our local authority. The current tenancy is an old-style Secure Tenancy under the 1987 Housing Scotland Act (as amended by the Housing Scotland Act 2001), and therefore there is the 'preserved' right to buy, with the maximum 60% discount. It had always been our intention to purchase the property, however due to circumstances over the years this never came to fruition. With the recent and upcoming changes to the Housing (Scotland) Act, it has become a more urgent matter, in that we need to purchase the property before the right to do so is lost.
Having researched the legislation, it appears to me that I have 2 options. It is my understanding that under the Housing (Scotland) Act 1987, part 3, S.61 p.6(a) I can jointly purchase the propertly with my father:
"(6)A tenant may exercise his right to purchase, if he so wishes, together with one or more members of his family acting as joint purchasers, provided—
(a)that such members are at least 18 years of age, that they have, during the period of 6 months ending with the date of service of the application to purchase, had their only or principal home with the tenant and that their residence in the house is not a breach of any obligation of the tenancy"
In itself, this is not really a problem, however I do not have cash funds to enable the purchase, so it would need to be mortgaged. I have questions around whether the legislation allows for just one of the 'joint purchasers' to obtain the mortgage, as it seems to me that if it had to be a joint mortgage, this would not be possible due to my fathers age.
The other option I can see in the legislation is that any joint tenant can purchase the property individually, if agreed by any other joint tenants (Housing (Scotland) Act 1987, part 3, S.61 p.1):
"61 Secure tenant’s right to purchase
(1)Notwithstanding anything contained in any agreement, a tenant of a house to which this section applies (or such one or more of joint tenants as may be agreed between them) shall, subject to this Part, have the right to purchase the house at a price fixed under section 62."
The question around this point that I cannot find an answer to in the legislation is if I were to become a joint tenant, would this be under the terms of the original tenancy agreement, or would it create a new tenancy agreement with the 'modern' RTB terms, or perhaps even with no RTB ?
Our local authority have this statement on their Joint Tenancy Request form (my emphasis):
"Adding a joint tenant could affect your right to buy your home if you were a tenant before 30th September 2002. The law is not clear. However, if you add a joint tenant there is a chance that you may lose your ‘preserved’ right to buy and move on to the ‘modernised’ right to buy which was introduced by the Housing (Scotland) Act 2001. The Housing (Scotland) Act 2010 made further changes to the right to buy. Brand new tenancies created after 1 March 2011 will have no right to buy entitlement. It is recommended that you seek independent legal advice before adding a joint tenant, in order to check if your rights are affected."
It seems to me that they do not want to commit to a position on this, however their tenants handbook states that you can apply for a joint tenant to be added to your tenancy, the wording of which suggests the joint tenancy would still be under the 1987 (2001) regs, as opposed to a new tenancy under the 2010, or later, regs.
However, the Housing (Scotland) Act 2001 states the following: Part 2, Ch 1, S.11, paragraphs 5 & 6:
"(5)The tenant under a Scottish secure tenancy and one or more other individuals falling within subsection (6) may jointly apply in writing to the landlord for the other individuals to be included with the tenant as joint tenants under the tenancy; and the landlord must consent to the alteration of the tenancy unless it has reasonable grounds for not doing so.
(6)An individual falls within this subsection if the house in question is, or is intended to be, that person’s only or principal home."
Also, section 24, paragraphs 1 (a), (b), and 2 seem applicable:
"24 Restriction on variation of tenancy
(1)Despite anything in the tenancy agreement, the terms of a Scottish secure tenancy may not be varied except—
(a)by written agreement between the landlord and the tenant, or
(b)under section 25 or 26.
(2)A variation referred to in subsection (1) does not terminate the tenancy."
I would appreciate any thoughts or advice you might be able to give on these matters, and look forward to hearing your views.
Many thanks,
Chris.
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