Collette Miller

Many social landlords in Scotland are having to adapt, along with the rest of us, to new ways of working in light of the coronavirus pandemic and the impact of the government measures relating to ‘social distancing’.

Often this means coming up with innovative, and sometimes ‘make do’, solutions to allow social landlords to continue providing key services to those who need it most.

Limitations on new tenancies

It is likely that there will be very few new tenancy sign-ups in the coming days, weeks and possibly (but hopefully not) months as a result of the government measures. In practical terms, prospective tenants will be unable to hire movers or a moving van.

However, many social landlords are turning their attention to providing emergency accommodation to homeless persons. Some are also restricting new tenancies to only essential situations, such as NHS or care workers, moving to be nearer to their workplace, and persons fleeing domestic violence or other compelling reasons requiring them to move out of their current accommodation.

It is recommended that all social landlords consider their policy on new tenancy sign-ups during this time and make a clear and sensible decision about the circumstances in which they will grant new tenancies during the emergency (or ‘lock-down’) period in Scotland. It is also important that social landlords consider how they will sign up any new tenancies during this time and lay down new procedures for their housing officers to follow.

Coronavirus restrictions on movement and gatherings

The restriction under the Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020 on people leaving their homes without a reasonable excuse, which is punishable by fixed penalty, does not apply to homeless persons.

Also, the restriction on gatherings of more than two people in a public place does not apply “where reasonably necessary to facilitate a house move” or to fulfil a legal obligation.

However, the government is urging the public to practice social distancing wherever possible to minimise the spread of coronavirus. Social landlords will also need to consider their position as an employer and how best to protect their staff from a health and safety perspective.

One question which has been raised by several of our housing clients is how they can sign up new tenancies if they are unable to sit down with the prospective new tenant, provide them with a tenancy agreement, explain its key terms and then have them sign the tenancy agreement in the presence of a witness (who is usually the housing officer or another staff member).

Requirement to sign SST and short SST agreements

The Housing (Scotland) Act 2001 provides at section 23(1) that:

“The landlord under a Scottish secure tenancy must:

(a) draw up a tenancy agreement stating (expressly or by reference) the terms of the tenancy,
(b) ensure that it is, before the commencement of the tenancy, subscribed or authenticated by the landlord and the tenant in accordance with the Requirements of Writing (Scotland) Act 1995, and
(c) supply a copy to the tenant.”

In other words, there is a legal requirement to have the written tenancy agreement signed before the tenancy commences by both the landlord and tenant, each in the presence of a witness who must also sign.

This also applies to short Scottish secure tenancies.

The position is different in relation to occupancy agreements, leases and private residential tenancies, which are not covered by this article, but on which we can separately advise landlords and tenants.

Risk of not having a signed tenancy agreement

As well as being in breach of section 23 of the 2001 Act, as set out above, if social landlords do not put in place signed tenancy agreements at the start of the tenancy, they could find it difficult to get tenants to sign these in future, once the emergency period comes to an end.

If the social landlord did not have a signed tenancy agreement or anything in writing from the tenant, this could lead to tenancy management or enforcement issues down the line if the tenant was to breach the terms of their tenancy. The landlord could not evidence that the tenant agreed to those tenancy terms and the tenant could try to defend a court action for breach of tenancy on the basis that they did not know or understand the terms of the tenancy agreement.

We are, of course, in unprecedented times and one would like to hope that the courts would allow some leeway when looking at these cases. However, it is in the best interests of both the landlord and tenant to ensure that the tenant is clear about their rights and responsibilities under the tenancy agreement, and that is documented wherever possible.

Alternative options for new sign-up process

Social landlords should consider how it can make a copy of the tenancy agreement available to any prospective new tenants before they are given the keys to the house. In order to minimise the potential health and safety risks of handling paper or mail, the tenancy agreement could be issued electronically to the prospective tenant by email or text.

Social landlords should take reasonable steps to ensure that any personal data is sent securely and that it keeps a record of its decision-making on how it sends this data in a secure way, having regard to its obligations under GDPR.

In place of a handover meeting, the social landlord could talk the prospective tenant through the key terms of the tenancy over the telephone – making sure to keep a written note of that discussion.

Social landlords should consider having the new tenant (or if there are joint tenants, each of them), agree in writing, which could be by text or email, to the terms of the tenancy and undertaking to sign a tenancy agreement as soon as possible when required to do so.

Steps should be taken to try to verify that any response received by text or email has come from the tenant.

We appreciate that the use of technology to complete new tenancy sign-ups may not always be possible, such as where a person does not have access to text, email or the internet. In those cases, social landlords should consider a solution that provides it with the best evidence of the tenant’s agreement to the terms of the tenancy.

Regulatory requirements

Social landlords should ensure that they keep good records of any instances where they are unable to operate as they usually would as a result of the coronavirus epidemic and should report these instances as and when required to the Scottish Housing Regulator.

• Read all of our articles relating to COVID-19 here.