Legalize / United Kingdom / Scotland / Act of the Scottish Parliament

Housing (Scotland) Act 2006

Type Act of the Scottish Parliament

Publication 2006-01-05

Last updated 2024-08-30

State In force

Jurisdiction Scotland

Department Statute Law Database

Source legislation.gov.uk

articles Not indexed

Reform history JSON API

(b) where the licence holder, the enforcing authority or the chief constable has objected to the variation—

(i) the last date on which the decision to vary the HMO licence may be appealed to the sheriff, or

(ii) where such an appeal is made, the date on which it is abandoned or finally determined other than by quashing the decision to vary, and

(c) any later date as may be specified in the notice of the decision to vary the HMO licence served on the licence holder under section 158.

Revocation of HMO licence

139

(1) The local authority may revoke an HMO licence at any time if it considers—

(a) that, if an application for that HMO licence were to be made at that time, it would be required by section 130 (suitability of applicants and agents) to refuse to grant it,

(b) that the living accommodation concerned is no longer suitable for occupation as an HMO and cannot be made so suitable by varying the conditions included in the HMO licence, or

(c) that any condition of an HMO licence has been breached (regardless of whether the local authority has taken any other action, or of whether criminal proceedings have been commenced, in respect of that breach).

(2) The local authority must serve notice of a proposed revocation on—

(a) the licence holder,

(b) any person who has made a written representation which the local authority considers relevant to a proposed revocation,

(d) the chief constable,

inviting each of them to make oral representations about the proposal.

(3) A notice under subsection (2) must—

(a) set out the ground on which the local authority proposes to revoke the HMO licence,

(b) be accompanied by a copy of any written representation which the local authority considers relevant to the proposed revocation, and

(4) The local authority must consider any oral representations made at the hearing before it decides whether to revoke the HMO licence.

(5) A revocation of an HMO licence has effect from—

(a) the last date on which the decision to revoke the HMO licence may be appealed to the sheriff, or

(b) where such an appeal is made, the date on which it is abandoned or finally determined other than by quashing the decision to revoke.

Delivery and cancellation of HMO licence

Delivery of HMO licence

140

(1) A notice under section 158 notifying the licence holder of a decision to grant or vary an HMO licence must be accompanied by the HMO licence or, as the case may be, by the HMO licence as varied.

(2) A notice under section 164(3)(b)(ii) notifying a remaining licence holder of the variation of the HMO licence must be accompanied by the HMO licence as varied.

(3) A licence holder who requests the local authority to provide a certified copy of the HMO licence is, if the request is reasonable, entitled to be given such a certified copy.

(4) Any such copy HMO licence which purports to be certified by a proper officer of the local authority is sufficient evidence of the terms of the HMO licence.

Cancellation of HMO licence

141

The licence holder may cancel the HMO licence at any time by returning it (and any certified copy issued under section 140(3)) to the local authority.

Temporary exemptions

Temporary exemption orders

142

(1) The local authority may, on the application of the owner of any HMO which requires to be licensed under this Part but which is not so licensed, grant an order (“a temporary exemption order”) in respect of the HMO.

(2) Such an application must specify the steps which the owner of the HMO intends to take with a view to securing that it stops being an HMO which requires to be licensed under this Part.

(3) The local authority may grant a temporary exemption order only if satisfied that the steps specified in the application will have the intended effect.

(4) An HMO does not require to be licensed under this Part during any period for which a temporary exemption order has effect in relation to it.

(5) A temporary exemption order has effect for—

(a) 3 months from the date it is granted, or

(b) where that period is extended under subsection (6), the extended period.

(6) The local authority may, on the application of the owner of any HMO in respect of which a temporary exemption order has effect, extend the period during which the order has effect by such period (not exceeding 3 months) as it thinks fit.

(7) But the local authority may so extend a period only if satisfied that there are exceptional circumstances which justify the extension.

(8) The 3 month period may not be extended more than once.

Temporary exemption orders: requirement to improve safety or security

143

(1) A temporary exemption order may require the owner of the HMO concerned to carry out such work in the HMO as the local authority may specify in the order for the purpose of improving the safety or security of its occupants during the period for which the order has effect.

(2) Any such work must be completed by such date as the local authority may specify in the order.

(3) But a date so specified must be not earlier than the date by which the local authority reasonably considers that the work required can be completed.

(4) The local authority may revoke a temporary exemption order if it is satisfied that the owner of the HMO has failed to comply with any requirement included in it.

(5) A revocation of a temporary exemption order has effect from—

(a) the last date on which the decision to revoke the order may be appealed to the sheriff, or

(b) where such an appeal is made, the date on which it is abandoned or finally determined other than by quashing the decision to revoke.

Enforcement by local authority

Suspension of rent etc.

144

(1) The local authority may, if satisfied—

(a) that an HMO which requires to be licensed under this Part is not so licensed, or

(b) that any condition included in an HMO licence has been breached (regardless of whether the local authority has taken any other action, or of whether criminal proceedings have been commenced, in respect of that breach),

by order provide that no rent or other sums for occupation are to be payable under any tenancy or occupancy arrangement by virtue of which any person occupies the living accommodation concerned.

(2) A notice under section 158 giving notice of the decision to make an order under subsection (1) must specify—

(a) the name of the owner of the living accommodation concerned (where the local authority is aware of it),

(b) the address of the living accommodation concerned,

(d) the date on which it is take effect (which must not be earlier than the date on which the notice is served on the owner).

(3) Where the local authority is aware of the name and address of a person who acts for the owner on whom that notice is served the local authority must serve a copy of the notice (accompanied by a copy of the order) on that person.

(4) The local authority must revoke an order under subsection (1) if—

(a) in the case of an order made in pursuance of paragraph (a) of that subsection, the local authority—

(i) subsequently grants an HMO licence to the owner of the living accommodation concerned, or

(ii) is subsequently satisfied, on the application of any person with an interest or otherwise, that the living accommodation concerned is no longer an HMO, or

(b) in the case of an order made in pursuance of paragraph (b) of that subsection, the local authority is subsequently satisfied, on the application of any person with an interest or otherwise—

(i) that the condition is no longer being breached, or

(ii) that the living accommodation concerned is no longer an HMO.

(5) The local authority must serve notice of any such revocation, as soon as practicable after doing so, on—

(a) the owner of the living accommodation concerned,

(b) the occupiers of the living accommodation concerned, and

and the revocation is to have effect from the day on which notice is served under paragraph (a).

(6) An order under subsection (1) does not affect the terms or validity of the tenancy or occupancy arrangement to which it relates (otherwise than by suspending the rent or other sums payable for occupation under that tenancy or occupancy arrangement).

(7) Revocation of an order under subsection (1) does not make any person liable to pay any rent or sums which that person would, but for the order, have been liable to pay under the tenancy or occupancy arrangement concerned while the order had effect.

(8) Failure to comply with—

(a) section 158(6)(b), or

(b) subsection (3) or (5)(b) or (c),

does not invalidate the order or, as the case may be, the revocation concerned.

Power to require rectification of breach of HMO licence

145

(1) This section applies where the local authority considers that any condition included in an HMO licence has been, or is likely to be, breached (regardless of whether the local authority has taken any other action, or of whether criminal proceedings have been commenced, in respect of that breach).

(2) Where this section applies the local authority may require the licence holder to take such action as the local authority considers necessary for the purposes of rectifying or, as the case may be, preventing the breach.

(3) A requirement under subsection (2) has effect from the date on which notice of the decision to make the requirement is served on the licence holder under section 158.

(4) That notice must specify—

(a) the action required, and

(b) the period within which that action must be undertaken.

(5) The period so specified must be the period within which the local authority reasonably considers that that action can be undertaken.

(6) The local authority may revoke a requirement under subsection (2) by serving notice to that effect on the licence holder; and the local authority must do so if satisfied that the licence holder has complied with the requirement.

HMO amenity notices

146

(1) This section applies to any living accommodation—

(a) which is, or which the local authority believes to be, an HMO which requires to be licensed under this Part (whether or not so licensed), and

(b) which the local authority considers is not reasonably fit for occupation by the number of persons whom the authority knows or believes to be occupying it.

(2) The local authority may require the owner of any living accommodation to which this section applies to carry out work in the living accommodation for the purposes of making it reasonably fit for occupation by—

(a) the number of persons whom the authority knows or believes to be occupying it, or

(b) such smaller number of persons which the authority considers could be reasonably accommodated in it if the work is carried out.

(3) A requirement under subsection (2) must be made by serving a notice (an “HMO amenity notice”) in accordance with section 158.

(4) The notice must specify, in addition to the matters specified in section 158(12)(a) and (b)—

(a) the work which requires to be carried out, and

(b) the period within which the work must be completed.

(5) The period so specified must be a period of not less than 21 days from the date on which the notice takes effect within which the local authority reasonably considers that the work can be completed.

(6) The HMO amenity notice may also specify particular steps which the local authority requires to be taken in carrying out the work required.

(7) An HMO amenity notice may not require the owner to take any fire safety measures within the meaning of the Fire (Scotland) Act 2005 (asp 5).

HMO amenity notices: relevant matters

147

(1) In reaching a decision for the purposes of section 146(1)(b) in relation to any living accommodation, the local authority must have regard to—

(a) the extent (if any) to which the living accommodation falls short of the provisions of building regulations, and

(b) any defects with respect to any of the matters mentioned in subsection (2).

(2) Those matters are—

(a) natural and artificial lighting,

(b) ventilation,

(d) personal washing facilities, and

(e) facilities for the storage, preparation and provision of food.

HMO amenity notices: revocation

148

(1) The local authority may revoke an HMO amenity notice if—

(a) the living accommodation to which it relates is demolished, or

(b) it considers that the work required by the notice is no longer necessary for the purpose for which the notice was served.

(2) The local authority must give notice of any such revocation in accordance with section 158.

HMO amenity notices: extension of period for completion of work

149

(1) The local authority may, at any time, extend the period within which any work required by an HMO amenity notice must be completed by such period as it considers reasonable.

(2) But such a period may be extended only where the local authority—

(a) considers that satisfactory progress has been made in carrying out the work, or

(b) has received a written undertaking from the owner stating that the work will be completed by a later date which the authority considers satisfactory.

(3) The local authority must give notice of any extension in accordance with section 158.

HMO amenity notices: further provision

150

Schedule 5 makes further provision about HMO amenity notices.

Power of local authority to carry out or arrange work

151

A local authority may carry out, or arrange for the carrying out of, any work which any other person is required under section 145(2) or 146(2) to carry out (but only by agreement with, and at the expense of, that other person).

Effect of person moving from living accommodation

152

(1) Where—

(a) a person moves from any living accommodation for the purposes of enabling any person to carry out any work required under section 145(2) or 146(2) (whether in pursuance of a requirement under paragraph 2(1) of schedule 5 or a warrant under paragraph 3(4) of that schedule or otherwise), and

(b) that person resides in the living accommodation under a tenancy or occupancy arrangement,

the tenancy or occupancy arrangement, if that person so chooses, is to be taken not to have terminated, varied or altered by reason of that person moving.

(2) If a person who has so moved resumes lawful occupation, the same terms apply (except so far as otherwise agreed) in respect of that occupation as applied in respect of the previous occupation.

(3) In this section “lawful occupation” means occupation which is not an offence under paragraph 4 of schedule 5.

Obstructions etc.

153

(1) This section applies if, after receiving notice of the intended action, any person prevents or obstructs any other person from doing anything which that other person is by or under section 145(2), 146(2) or 151 or schedule 5 required, authorised or entitled to do.

(2) Where this section applies, the sheriff may order the person who prevented or obstructed another person to permit that other person to do all things which the other person reasonably requires to do for the purposes of—

(a) complying with any requirement imposed under section 145(2) or 146(2) or schedule 5, or

(b) doing anything which that other person is by or under section 145(2), 146(2) or 151 or schedule 5 authorised or entitled to do.

(3) Any person who fails to comply with such an order is guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(4) This section does not apply in relation to rights conferred by Part 9.

Offences etc.

Offences relating to HMOs

154

(1) The owner of an HMO which requires to be licensed under this Part commits an offence if the HMO is not so licensed (unless the owner has a reasonable excuse for not holding an HMO licence).

(2) A licence holder commits an offence if—

(a) any condition included in the HMO licence is, without reasonable excuse, breached at any time during which the living accommodation concerned is an HMO which requires to be licensed under this Part,

(b) the licence holder, without reasonable excuse, permits any person to occupy the living accommodation concerned at any time during which a requirement under section 145(2) (power to require rectification of breach) has effect in relation to it, or

(c) the licence holder authorises any person who is not specified as the licence holder's agent in the HMO licence to do anything which directly permits or facilitates the occupation of the living accommodation concerned as an HMO which requires to be licensed under this Part.

(3) The owner of any living accommodation commits an offence by, without reasonable excuse, representing an HMO licence which has ceased to have effect as having effect in relation to the living accommodation.

(4) A person commits an offence if the person, without reasonable excuse, does anything as agent for the owner of any living accommodation which directly permits or facilitates the occupation of the living accommodation—

(a) as an HMO which requires to be licensed under this Part at any time when—

(i) it is not so licensed, or

(ii) an HMO licence does not authorise the person to do so, or

(b) at any time during which a requirement under section 145(2) has effect in relation to it.

(5) An agent specified in an HMO licence commits an offence if the agent, without reasonable excuse, causes any condition included in the HMO licence to be breached at any time during which the living accommodation concerned is an HMO which requires to be licensed under this Part.

(6) A person commits an offence by preventing or obstructing any person from exercising a power conferred by section 181(1)(e) (powers of entry).

Defences

155

(1) The owner of an HMO which requires to be licensed under this Part but which is not so licensed has reasonable excuse for not holding an HMO licence if—

(a) either of the circumstances mentioned in subsection (2) apply, and

(b) the owner—

(i) has taken reasonable steps with a view to securing that the living accommodation concerned stops being an HMO which requires to be licensed under this Part, but

(ii) despite having taking those steps, is unable to stop it from being such an HMO without breaching the terms of any tenancy or occupancy arrangement under which any person occupied it on the day on which the HMO licence was revoked or, as the case may be, on which the exemption ceased to have effect.

(2) The circumstances mentioned in subsection (1)(a) are—

(a) that an HMO licence held by the owner in respect of the HMO has been revoked,

(b) that the HMO requires to be licensed under this Part by virtue only of the fact that an exemption provided by an order by the local authority under section 127(2) has ceased to have effect.

(3) A licence holder has reasonable excuse for breaching a condition of an HMO licence if the licence holder—

(a) has taken reasonable steps with a view to securing that the condition is not breached, but

(b) despite having taken those steps, cannot secure compliance with the condition without breaching the terms of any tenancy or occupancy arrangement under which any person occupied the living accommodation concerned on the day on which the HMO licence was granted or, as the case may be, varied so as to include that condition.

(4) Subsections (1) and (3) do not affect the generality of the defence of reasonable excuse.

(5) It is not an offence under section 154(2)(b) or (4)(b) to permit or, as the case may be, to do anything which permits or facilitates the occupation by any person of the living accommodation concerned if that person occupied it on the day from which the requirement in question has effect.

(6) Where—

(a) the owner of living accommodation has applied for an HMO licence in respect of it, and

(b) the local authority has not determined the application,

it is not an offence to do anything as agent for that owner which would otherwise be an offence under section 154(4)(a) if that act does not entitle a person to occupy the living accommodation before an HMO licence is granted in respect of it.

Penalties etc.

156

(1) A person guilty of an offence under section 154 is liable, on summary conviction, to a fine not exceeding—

(a) in the case of an offence under subsection (1) or (4)(a) of that section, £50,000,

(b) in the case of an offence under subsection (2), (4)(b) or (5) of that section, £10,000,

(2) Within 6 days of the court convicting a person of an offence under section 154, the clerk of court must provide to the local authority which granted the HMO licence—

(a) an extract of the conviction and sentence (if any), and

(b) a note of any order made under section 157(2).

Disqualification orders etc.

157

(1) This section applies where a court convicts a person of an offence under section 154 (other than an offence under subsection (6) of that section committed by a person who is not the owner of the living accommodation concerned nor an agent acting for that owner).

(2) Where this section applies, the court may, in addition to imposing a penalty under section 156, by order—

(a) revoke any HMO licence which has effect in relation to the living accommodation concerned,

(b) where the convicted person is the owner of the living accommodation concerned, disqualify the owner (and, where the owner is not an individual, any director, partner or other person concerned in the management of the owner) from holding an HMO licence for such period not exceeding 5 years as may be specified in the order,

(c) where the convicted person acted as agent for the owner of the living accommodation concerned, disqualify the convicted person (and, where the convicted person is not an individual, any director, partner or other person concerned in the management of the convicted person) from being able to act as agent for any licence holder for such period not exceeding 5 years as may be specified in the order.

(3) A person may appeal against an order under subsection (2) in the same manner as the convicted person may appeal against sentence.

(4) The court which made an order under subsection (2) may suspend its effect pending such an appeal.

(5) The court may, on summary application by a person disqualified by an order under subsection (2)(b), revoke the order with effect from such date as the court may specify.

(6) But no such revocation may be made unless the court is satisfied that there has been a change in circumstances which justifies the revocation of the order.

(7) No application may be made for the purposes of subsection (5) during the first year of a disqualification.

(8) The court may order the applicant to pay the whole or part of the expenses arising from an application made for the purposes of subsection (5).

Local authority decisions: notice and appeals

Notice of decisions

158

(1) This section applies to any decision by the local authority—

(a) to grant an HMO licence (with or without conditions) or to refuse to do so,

(b) to vary an HMO licence or not to make a proposed variation,

(d) to grant a temporary exemption order (with or without a requirement such as mentioned in section 143) or to refuse to do so,

(e) to extend the period for which a temporary exemption order has effect or to refuse to do so,

(f) to revoke a temporary exemption order,

(g) to make an order under section 144(1) or to refuse, on the application of any person with an interest, to revoke the order,

(h) to make a requirement under section 145(2),

(i) to revoke a requirement under section 145(2),

(j) to serve an HMO amenity notice,

(k) to revoke an HMO amenity notice,

(l) to extend the period within which the work required by an HMO amenity notice must be completed,

(m) to demand recovery of expenses under paragraph 6 of schedule 5, or

(n) to refuse to grant a certificate under paragraph 7 of schedule 5.

(2) The local authority must serve notice of a decision falling within paragraphs (a) to (c) of subsection (1) on—

(a) the applicant or, as the case may be, the licence holder,

(b) the enforcing authority, and

(3) The local authority must also either—

(a) serve notice of a decision falling within paragraph (a) of that subsection on each person who made a valid written representation, or a late written representation considered by the authority, in relation to the application, or

(b) give notice of that decision in a newspaper circulating in its area.

(4) The local authority must also serve notice of a decision falling with paragraph (c) of that subsection to any person from whom it heard evidence in pursuance of section 139(2)(b) (notice inviting respondent to be heard).

(5) The local authority must serve notice of a decision falling within paragraphs (d) to (f) of that subsection on the owner and the occupiers of the living accommodation concerned.

(6) The local authority must serve notice of a decision falling within paragraph (g) of that subsection on—

(a) the owner of the living accommodation concerned,

(b) the occupiers of the living accommodation concerned, and

(7) The local authority must serve notice of a decision falling within paragraph (h) or (i) of that subsection on—

(a) the licence holder,

(b) the occupiers of the living accommodation concerned,

(d) the chief constable.

(8) The local authority must serve notice of a decision falling within paragraph (j), (k) or (l) of that subsection on—

(a) the owner and occupiers of the living accommodation concerned,

(b) the chief constable,

(d) any creditor holding a standard security over the living accommodation,

(e) any person who, directly or indirectly, receives rent in respect of the living accommodation, and

(f) any other person appearing to the local authority to have an interest in the living accommodation.

(9) Failure to comply with any of paragraphs (d) to (f) of subsection (8) does not invalidate a notice if the local authority, after exercising its powers under section 186(1), is not aware of the existence of the person on whom the notice should have been served.

(10) The local authority must serve notice of a decision falling within paragraph (m) or (n) of subsection (1) on the owner of the living accommodation concerned.

(11) A notice of a decision to which this section applies must be served within 7 days of the decision.

(12) The notice must—

(a) subject to subsection (17), advise of the right to request the local authority's reasons for the decision,

(b) advise of the right to appeal against the decision and of the period within which such an appeal must be made,

(c) if an HMO licence is granted, narrate the effect of section 134 (which sets the date from which the HMO licence has effect and the date on which it expires),

(d) if an HMO licence is varied or revoked, narrate the effect of section 138 or, as the case may be, 139 (which sets the date from which the variation or, as the case may be, revocation has effect),

(e) if a temporary exemption order is granted, be accompanied by a copy of the order,

(f) if an order under section 144(1) is made, be accompanied by a copy of the order.

(13) A person on whom a notice of a decision to which this section applies has been served may request the local authority to give its reasons for the decision.

(14) A request under subsection (13) must be made within 14 days of the person receiving notice of the decision.

(15) Where a local authority receives such a request it must notify the person of its reasons for the decision within 14 days of receiving the request.

(16) A local authority must, at the same time as notifying the person under subsection (15), so notify any other person on whom a notice of the decision has been served.

(17) The requirement for the notice to advise of the right to request the local authority's reasons does not apply where the reasons are included in the notice (or accompany it in writing).

Part 5 appeals

159

(1) Any decision of a local authority to which section 158 applies may be appealed by summary application to the sheriff.

(2) An appeal may be made only by a person on whom notice of the decision requires to be served under that section.

(3) An appeal is not competent unless the person making it has followed every procedure made available under this Part for stating a case to the local authority in relation to the decision being appealed that it would be reasonable to have expected the person to follow.

(4) An appeal must be made within 28 days of the person receiving notice of the decision.

(5) But the sheriff may on cause shown hear an appeal made after the deadline set by subsection (4).

(5A) For the purposes of an appeal, the sheriff may require the local authority to give reasons for the decision (if the authority has not already done so), and the authority must comply with such a requirement.

(6) The sheriff may determine the appeal by—

(a) confirming the decision (and any HMO licence or order granted or varied, or requirement made, in consequence of it) with or without variations,

(b) remitting the decision, together with the sheriff's reasons for doing so, to the local authority for reconsideration, or

(c) quashing the decision (and any HMO licence or order granted, or variation or requirement made, in consequence of it).

(7) The sheriff may not determine the appeal in a manner described in subsection (6)(b) where the decision appealed against is a decision to serve an HMO amenity notice.

(8) On remitting a decision the sheriff may—

(a) set a date by which the local authority must, after reconsidering the decision, confirm, vary, reverse or revoke it,

(b) modify any procedural steps which would otherwise be required by or under any enactment (including this Act) in relation to the reconsideration.

(9) A determination by the sheriff may be appealed to the sheriff principal within 28 days of the sheriff's determination.

(10) The sheriff principal's decision on any such appeal is final.

(11) The sheriff may make such order about the expenses of an appeal under subsection (1) as the sheriff thinks fit (and the sheriff principal may make such an order in relation to any subsequent appeal).

(12) References in the other provisions of this Part to the date on which an appeal to the sheriff is finally determined are to be read as references—

(a) where the appeal is determined by the sheriff under subsection (6)(a) or (c)—

(i) to the last date on which the determination may be appealed to the sheriff principal under subsection (9), or

(ii) where such an appeal is made, to the date on which that appeal is abandoned or determined by the sheriff principal, or

(b) where the appeal is determined by the sheriff under subsection (6)(b), to the date of the determination.

(13) Subsection (12)(b) does not affect any entitlement to appeal to the sheriff principal under subsection (9) against a determination by the sheriff under subsection (6)(b).

(14) A reference in this Part to the last date on which a decision may be appealed under this section to the sheriff is, where that date is in any case changed under subsection (5), to be read as referring to the new date only if the change is made before the date on which the right to appeal would otherwise expire.

General and supplementary

HMO register

160

(1) A local authority must keep a register containing information about HMO licences for living accommodation situated in its area (and applications for them).

(2) A local authority must enter in its HMO register—

(a) details of each application for an HMO licence including—

(i) the name of the applicant,

(ii) the address of the living accommodation concerned,

(iii) the name of any agent specified in the application,

(iv) a note of the date on which the application is made,

(b) a note of its decision on each such application,

(i) a note of any conditions included in the HMO licence,

(ii) a note of any variation, revocation or cancellation of the HMO licence, and

(d) such other information as it thinks fit.

(3) A local authority must exclude from its HMO register any information it would otherwise be required by subsection (2) to enter in the register if the authority considers that entering the information is likely to jeopardise—

(a) the safety or welfare of any person, or

(b) the security of any premises.

(4) A local authority must make its HMO register available for public inspection at all reasonable times.

(5) A person who requests a local authority to provide a certified copy of any entry in its HMO register is, if the request is reasonable, entitled to be given that certified copy.

(6) Any such copy entry which purports to be certified by a proper officer of the local authority is sufficient evidence of the terms of the entry.

Fees

161

(1) The local authority is entitled to charge a fee in relation to—

(a) an application for an HMO licence,

(b) the issue of a certified copy of an HMO licence under section 140(3),

(2) The Scottish Ministers may by order make provision about the charging of fees under subsection (1).

(3) Such an order may, in particular—

(a) set the amount, or maximum amount, of any such fee,

(b) set out how such fees are to be arrived at,

(d) specify circumstances in which fees are to be refunded.

Grants: exercise of functions in relation to HMOs

162

The Scottish Ministers may pay to a local authority such sums as they think fit for the purpose of enabling or assisting the authority to exercise its functions under this Part.

Guidance

163

(1) A local authority must have regard to any guidance issued by the Scottish Ministers about the exercise of its functions under this Part and section 186 (so far as that section relates to this Part).

(2) Such guidance may make different provision for different cases and, in particular, for different areas, different types of living accommodation, different types of person or different types of local authority.

(3) Before issuing any such guidance the Scottish Ministers must consult—

(a) local authorities, and

(b) such other persons as they think fit.

(4) The Scottish Ministers must issue any such guidance in such manner as they consider appropriate for the purpose of bringing it to the notice of local authorities generally or, as the case may be, the local authority concerned.

(5) The Scottish Ministers may vary or revoke any guidance issued for the purposes of this section.

Joint licence holders

164

(1) Where living accommodation is owned jointly by two or more persons, an application for an HMO licence for the living accommodation may be made by—

(a) any one of those owners, or

(b) any two or more of those owners jointly,

and references in this Part to an “applicant” or a “licence holder” are to be construed accordingly.

(2) Where one or more (but not all) of the joint licence holders ceases to be an owner of the living accommodation concerned, the HMO licence is to be treated as having been granted to any licence holder who remains an owner.

(3) Where one or more (but not all) of the joint licence holders applies to the local authority to be removed as licence holders, the local authority must—

(a) vary the HMO licence accordingly, and

(b) serve notice of that variation on—

(i) the persons removed as licence holders,

(ii) the remaining licence holder,

(iii) the enforcing authority, and

(iv) the chief constable,

within 7 days of the variation.

(4) A variation under subsection (3) has effect from the day on which notice of the variation is served on the remaining licence holder.

Agents

165

(1) Where the local authority serves a notice on an applicant or licence holder under this Part (except section 144), the local authority must serve a copy of the notice (and any documents accompanying it) on any agent specified in the application or, as the case may be, the HMO licence.

(2) But service under subsection (1) does not entitle the agent to make representations or appeal any decision under this Part except on behalf of the applicant or licence holder.

Interpretation of Part 5

166

In this Part—

“applicant” means a person who applies for an HMO licence,

“ chief constable ” means the chief constable of the Police Service of Scotland,

“ enforcing authority ” has the meaning given by section 61(9) of the Fire (Scotland) Act 2005 (asp 5),

“finally determined”, in relation to an appeal to the sheriff, has the meaning given in section 159(12),

“HMO register”, in relation to a local authority, means the register kept by it under section 160,

“licence holder” means a person who holds an HMO licence,

“proper officer”, in relation to a local authority, is to be construed in accordance with section 235(3) of the Local Government (Scotland) Act 1973 (c. 65).

Part 6 — Mobile homes

Particulars of site agreements to be given in advance

167

For section 1 (particulars of agreements between site owners and occupiers of mobile homes) of the Mobile Homes Act 1983 (c. 34) (“the 1983 Act”) substitute—

(1) (1) This Act applies to any agreement under which a person (“the occupier”) is entitled— (a) to station a mobile home on land forming part of a protected site; and (b) to occupy the mobile home as the person's only or main residence. (2) Before making an agreement to which this Act applies, the owner of the protected site (“the owner”) must give to the proposed occupier under the agreement a written statement which— (a) specifies the names and addresses of the parties; (b) includes particulars of the land on which the proposed occupier is to be entitled to station the mobile home that are sufficient to identify that land; (c) sets out the express terms to be contained in the agreement; (d) sets out the terms to be implied by section 2(1) below; and (e) complies with such other requirements as may be prescribed by regulations made by the Scottish Ministers. (3) Where the owner is selling the mobile home to the proposed occupier, the written statement required by subsection (2) above must be given not later than 28 days before the earlier of— (a) the date on which the agreement to which this Act applies is made; and (b) the date on which any agreement for the sale of the mobile home to the proposed occupier is made. (4) In any other case, the written statement required by subsection (2) above must be given not later than 28 days before the date on which the agreement to which this Act applies is made. (5) But if the proposed occupier consents in writing to the written statement required by subsection (2) above being given by a date which is later than the date by which subsection (3) or (4) above would otherwise require it to be given, the statement must be given not later than that later date. (6) If any express term— (a) is contained in an agreement to which this Act applies; but (b) was not set out in a written statement given to the proposed occupier in accordance with subsections (2) to (5) above, the term is unenforceable by the owner or any person within section 3(1) below. This subsection is subject to any order made by the court under section 2(3) below. (7) If the owner has failed to give the occupier a written statement in accordance with subsections (2) to (5) above, the occupier may, at any time after the making of the agreement, apply to the court for an order requiring the owner— (a) to give the occupier a written statement which complies with paragraphs (a) to (e) of subsection (2) above (read with any modifications necessary to reflect the fact that the agreement has been made); and (b) to do so not later than such date as is specified in the order. (8) A statement required to be given to a person under this section may be either delivered to the person personally or sent to the person by post. (9) Any reference in this section to the making of an agreement to which this Act applies includes a reference to any variation of an agreement by virtue of which the agreement becomes one to which this Act applies. (10) Regulations under this section— (a) shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of the Scottish Parliament; and (b) may make different provision with respect to different cases or descriptions of case.

Variation of site agreements

168

Section 2 of the 1983 Act (terms of agreements) is amended as follows—

(a) in subsection (2), for “six months of the giving of the statement under section 1(2) above” substitute “ the relevant period ”, and

(b) for subsection (3) substitute—

(3) The court may, on the application of either party made within the relevant period, make an order— (a) varying or deleting any express term of the agreement; (b) in the case of any express term to which section 1(6) above applies, provide for the term to have full effect or to have such effect subject to any variation specified in the order. (3A) In subsections (2) and (3) above “the relevant period” means the period beginning with the date on which the agreement is made and ending— (a) six months after that date; or (b) where a written statement relating to the agreement is given to the occupier after that date (whether or not in compliance with an order under section 1(7) above), six months after the date on which the statement is given; and section 1(9) above applies for the purposes of this subsection as it applies for the purposes of section 1.

Implied terms relating to termination of agreements or disposal of mobile homes

169

(1) Part 1 of Schedule 1 (terms implied in site agreements) to the 1983 Act is amended as follows.

(2) In paragraph 6 (termination by owner on ground of detrimental effect resulting from age and condition of mobile home)—

(a) the words “age and” are repealed,

(b) after sub-paragraph (2) insert—

(3) Sub-paragraphs (4) and (5) below apply if, on an application under sub-paragraph (1) above— (a) the court considers that— (i) having regard to the present condition of the mobile home, paragraph (a) or (b) of that sub-paragraph applies to it; but (ii) it would be reasonably practicable for particular repairs to be carried out on the mobile home that would result in neither of those paragraphs applying to it; and (b) the occupier indicates an intention to carry out those repairs. (4) In such a case the court may make an order setting out the repairs and adjourning proceedings on the application for such period specified in the order as the court considers reasonable to allow the repairs to be carried out. (5) If the court makes such an order, the application is not to be further proceeded with unless the court is satisfied that the specified period has expired without the repairs having been carried out.

(3) In paragraph 8 (sale of mobile home to person approved by owner)—

(a) after sub-paragraph (1) insert—

(1A) The occupier may serve on the owner a request for the owner to approve a person for the purposes of sub-paragraph (1) above. (1B) The owner must, within 28 days of receipt of the request— (a) approve the person, unless it is reasonable for the owner not to do so; and (b) serve on the occupier notice of the decision whether or not to approve the person. (1C) An approval may be made subject to conditions. (1D) But any such conditions must be— (a) reasonable, and (b) capable of being satisfied without varying or deleting any express term of the agreement. (1E) A notice under sub-paragraph (1B) above must specify— (a) if the approval is given subject to conditions, the conditions; (b) if the approval is withheld, the reasons for withholding it. (1F) The occupier may appeal to the court if— (a) the owner fails to notify the occupier as required by sub-paragraphs (1B) and (1E) above; (b) the owner decides not to approve the person; or (c) the occupier is aggrieved by any condition imposed in an approval. (1G) The court may determine such an appeal by— (a) making an order declaring that the person is approved (subject to such conditions, if any, as may be specified in the order), or (b) making such other order as it thinks fit. (1H) It is for the owner— (a) if the owner served a notice under sub-paragraph (1B) above and the question arises whether the notice was served within the required period of 28 days, to show that it was; (b) if the owner gave approval subject to any condition and the question arises whether the condition falls within sub-paragraph (1D) above, to show that it does; (c) if the owner withheld approval and the question arises whether it was reasonable for the owner to do so, to show that it was. (1I) A request or notice under this paragraph— (a) must be in writing; and (b) may be either delivered personally or sent by post.

(b) in sub-paragraph (2) for “Secretary of State” substitute “ Scottish Ministers ”.

(4) After the existing provisions of paragraph 9 (gift of mobile home to person approved by owner), which become sub-paragraph (1), insert—

(2) Sub-paragraphs (1A) to (1I) of paragraph 8 above shall apply in relation to the approval of a person for the purposes of sub-paragraph (1) above as they apply in relation to the approval of a person for the purposes of sub-paragraph (1) of that paragraph.

(5) The amendments made by this section apply in relation to an agreement to which the 1983 Act applies that was made before the day on which this section comes into force as well as in relation to one made on or after that day.

(6) However—

(a) the amendments made by subsection (2) do not apply in relation to any application for the purposes of paragraph 6 of schedule 1 to the 1983 Act which is made before the date on which this section comes into force, and

(b) the amendments made by subsections (3)(a) or (4) do not apply in relation to any request for approval for the purposes of paragraph 8 or, as the case may be, 9 of that schedule which is made before that date.

Power to amend terms implied in site agreements

170

(1) After section 2A of the 1983 Act insert—

(2B) (1) The Scottish Ministers may by order make such amendments of Part 1 or 2 of Schedule 1 to this Act as they consider appropriate. (2) An order under this section— (a) shall be made by statutory instrument; (b) may make different provision with respect to different cases or descriptions of case; (c) may contain such incidental, supplementary, consequential, transitional or saving provisions as the Scottish Ministers consider appropriate. (3) Without prejudice to the generality of subsections (1) and (2), an order under this section may— (a) make provision for or in connection with the determination by the court of such questions, or the making by the court of such orders, as are specified in the order; (b) make such amendments of any provision of this Act as the Scottish Ministers consider appropriate in consequence of any amendment made by the order in Part 1 or 2 of Schedule 1. (4) The first order made under this section may provide for all or any of its provisions to apply in relation to agreements to which this Act applies that were made at any time before the day on which the order comes into force (as well as in relation to such agreements made on or after that day). (5) No order may be made under this section unless the Scottish Ministers have consulted— (a) such organisations as appear to them to be representative of interests substantially affected by the order; and (b) such other persons as they consider appropriate. (6) No order may be made under this section unless a draft of the order has been laid before, and approved by a resolution of, the Scottish Parliament.

(2) For the purposes of subsection (5) of the section 2B inserted by this section, consultation undertaken before the date on which this section comes into force (including any undertaken before the Bill for this Act received Royal Assent) constitutes as effective compliance with that subsection as if it had been undertaken on or after that date.

Amendments: harassment and eviction of occupiers of mobile homes

171

(1) The Caravan Sites Act 1968 (c. 52) is amended as follows—

(a) in section 1(2) (meaning of “protected site”), for “or 11A of Schedule 1 to that Act (exemption of gypsy and other” substitute “ of Schedule 1 to that Act (exemption of ”,

(b) in section 3 (protection of occupiers against eviction and harassment)—

(i) for paragraph (c) of subsection (1) substitute—

(c) if, whether during the subsistence or after the expiration or determination of a residential contract, the person— (i) does anything likely to interfere with the peace or comfort of the occupier or persons residing with the occupier; or (ii) persistently withdraws or withholds services or facilities reasonably required for the occupation of the caravan as a residence on the site, and (in either case) knows, or has reasonable cause to believe, that that conduct is likely to cause the occupier to abandon the occupation of the caravan or remove it from the site or to refrain from exercising any right or pursuing any remedy in relation to the caravan.

(ii) subsections (1A) and (1B) are repealed,

(iii) in subsection (3) (penalties for offences), for the words from “liable” to the end substitute

liable on summary conviction— (a) in the case of a first offence, to a fine not exceeding the statutory maximum; (b) in the case of a second or subsequent offence, to a fine not exceeding the statutory maximum or to imprisonment for a term not exceeding 6 months, or to both.

(iv) for subsection (4A), substitute—

(4A) In proceedings for an offence under subsection (1)(c) of this section it shall be a defence to prove that the accused had reasonable grounds for doing the acts or withdrawing or withholding the services or facilities in question.

(c) in section 4(6) (restriction on suspension of eviction orders), for the words from “if” to the end of paragraph (b) substitute

if— (a) no site licence under Part 1 of the Caravan Sites and Control of Development Act 1960 (c. 62) is in force in respect of the site; and (b) paragraph 11 of Schedule 1 to that Act does not apply;

(2) The amendments made by subsections (1)(a) and (b) do not apply in relation to conduct occurring before the day on which those provisions comes into force.

(3) The amendment made by subsection (1)(c) does not apply in relation to proceedings begun before the day on which that provision comes into force.

Part 7 — Repayment charges

Repayment charges

172

(1) A local authority entitled to recover a sum under section 59(1) or (2) , section 61(3A), subsection (6A) below , paragraph 6(1) of schedule 5 or section 4A(5) of the Tenements (Scotland) Act 2004 (asp 11) may make in favour of itself a charge (a “repayment charge”)—

(a) specifying the repayable amount and the property concerned, ...

(b) providing that the property concerned is charged with the repayable amount.

(c) providing that the repayable amount is payable in the number of equal annual instalments and on the date in each year determined under subsection (3)(a),

(d) providing that in default of such payment each instalment, together with any amount recoverable in respect of that instalment under subsection (6A), is to be separately recoverable as a debt, and

(e) providing that if immediately after the final instalment falls due any balance of the repayable amount remains unpaid, that balance is immediately due for repayment and is recoverable as a debt.

(2) The repayable amount is the lowest of—

(a) the amount recoverable under section 59(1) or (2) , section 61(3A), subsection (6A) below, paragraph 6(1) of schedule 5 or section 4A(5) of the Tenements (Scotland) Act 2004,

(b) any lower amount determined by the local authority, and

(3) The local authority must—

(a) determine—

(i) the number of equal annual instalments, being no fewer than 5 and no more than 30, in which the repayable amount is to be paid, and

(ii) the date in each year on which the instalment becomes due, and

(b) notify the owner of its determination under paragraph (a).

(4) The local authority must register a repayment charge in the appropriate land register.

(4A) The owner of a property who is liable for the repayable amount does not, by virtue only of ceasing to be such an owner, cease to be liable for the repayable amount.

(5) The owner of, or any other person interested in, any property subject to a repayment charge may at any time redeem the repayable amount early by paying to the local authority—

(a) such sum as the owner or other person may agree with the local authority, or

(b) failing such agreement, such sum as the Scottish Ministers may determine.

(6) The local authority must, on receiving—

(a) payment of the repayable amount in accordance with the repayment charge, or

(b) a sum redeeming the repayable amount under subsection (5),

(6A) A local authority may recover—

(a) the amount of any fee payable in respect of registering a repayment charge or a discharge of such a charge,

(b) any administrative expenses incurred by it in connection with the registration, and

(c) interest, at such reasonable rate as it may determine, from the date when a demand for payment is served until the whole amount is paid,

from the owner of the property concerned.

(6B) Subsection (6A)(c) does not apply where the recoverable amount relates to a sum the local authority is entitled to recover under section 4A(5) of the Tenements (Scotland) Act 2004 (asp 11).

(7) Where a repayment charge is made in respect of expenses incurred by a local authority in demolishing a house, references in this section and in section 173 to property are to be read as references to the site of the demolished house.

(8) This section does not apply in relation to—

(a) the recovery of sums under section 59(2) from a landlord who is not the owner of the property concerned,

(b) property which is not a building.

(9) In this section and in section 173, “ property ” means a place which is—

(a) living accommodation, or

(b) non-residential premises within the meaning of section 69(3).

Effect of registering repayment charges etc.

173

(1) A registered repayment charge is conclusive evidence that the charge specified in it has been created in respect of the property specified in it.

(2) A registered repayment charge constitutes a charge on the property specified in it and has priority over—

(a) all future burdens and incumbrances on the same property, and

(b) all existing burdens and incumbrances on the same property except any charges created or arising under—

(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(ii) any local Act authorising a charge for recovery of expenses incurred by a local authority,

(iii) Schedule 9 of the 1987 Act,

(iv) section 172, or

(v) any Act authorising advances of public money.

(3) A registered repayment charge is enforceable at the instance of the local authority against any person deriving title to the charged property.

(4) But it is not enforceable against—

(a) a third party who acquires right to the charged property (whether title has been completed or not) in good faith and for value before the repayment charge is registered, or

(b) any person deriving title from such third party.

(5) A registered discharge of a repayment charge is conclusive evidence that the charge concerned has been discharged.

Repayment charges: further provision

174

The Scottish Ministers may by order—

(a) specify the form which a repayment charge, or a discharge of a repayment charge, must be in,

(b) make such further provision as they think fit about the repayment or early redemption of amounts repayable under a repayment charge.

Part 8 — Miscellaneous

Matters relevant to deciding whether person is fit and proper to act as a landlord

175

(1) The Antisocial Behaviour etc. (Scotland) Act 2004 (asp 8) is amended as follows.

(2) In section 85 (matters to be considered by local authority in deciding whether a person is a fit and proper person to act as landlord to an unconnected person)—

(a) in subsection (2)(c), before sub-paragraph (i) insert—

(zi) any Letting Code issued under section 92A;

(b) after subsection (3) insert—

(3A) Material falls within this subsection if it relates to any agreement between the relevant person and any person in terms of which that person acts for the relevant person in relation to a lease or occupancy arrangement such as is mentioned in section 84(3)(c).

(4A) A local authority need not, despite subsection (1), have regard to any material falling within subsection (3A) in deciding for the purposes of section 84(4) whether a person specified in an application by virtue of section 83(1)(c) is a fit and proper person to act for a landlord.

(3) After section 92 insert—

(92A) (1) The Scottish Ministers may prepare and issue a code of practice, to be known as the Letting Code, making provision about the standards of management of— (a) any relevant person who enters into, or who seeks to enter into, a lease or occupancy arrangement by virtue of which an unconnected person may use a house as a dwelling, and (b) any other person who acts for such a relevant person in relation to such a lease or occupancy arrangement. (2) The Scottish Ministers must, from time to time, review any Letting Code issued under subsection (1) and may, following such a review— (a) vary it, or (b) revoke and replace it. (3) The Scottish Ministers must, before preparing, varying or replacing any Letting Code— (a) publish, in such manner as they think fit, an assessment of the effectiveness of any existing obligations and voluntary arrangements which relate to any standards of management which a Letting Code may make provision about, and (b) consult— (i) such bodies representing local authorities, (ii) such bodies representing private sector landlords, and (iii) such other persons, as they think fit about the need for, and the terms of, the Letting Code or variation proposed. (4) An assessment under subsection 3(a) above must, in particular, assess the effectiveness of— (a) the Rent (Scotland) Act 1984 (c. 58), and (b) registration under this Part, in dealing with harassment, unlawful eviction or unlawful management practices.

Other amendments of Antisocial Behaviour etc. (Scotland) Act 2004

176

(1) The Antisocial Behaviour etc. (Scotland) Act 2004 (asp 8) is amended as follows.

(2) In section 82 (registers of certain landlords), subsection (2) is repealed.

(3) In section 83(1) (information to be specified in an application for registration)—

(a) the word “and” which follows paragraph (c) is repealed,

(b) after paragraph (c) insert—

(ca) the address to which correspondence with the relevant person should be directed; and

(4) In section 84(5) (information to be stated in an entry in register), for “(c)” substitute “ (ca) ”.

(5) In section 85(2)(b) (material relating to unlawful discrimination), the words from first “on” to “disability” are repealed.

(6) After section 87, insert—

(87A) (1) This section applies where a local authority receives notice under paragraph 6 of schedule 2 to the Housing (Scotland) Act 2006 (asp 1) that a private rented housing committee has, in pursuance of a decision of the committee— (a) made or varied a repairing standard enforcement order; (b) revoked a repairing standard enforcement order; (c) consented under section 28(6) of that Act to the landlord entering into a tenancy or occupancy arrangement; or (d) granted a certificate under section 60 of that Act; and the landlord to whom the notice relates is a person registered by the local authority. (2) Where paragraph (a) or (c) of subsection (1) applies, the local authority must note the decision of the committee in the person's entry in the register. (3) Where paragraph (b) or (d) of subsection (1) applies, the local authority must remove any information noted in the register by virtue of subsection (2) which relates to the order revoked or to the order in relation to which the certificate was granted, as the case may be.

(7) After section 88 insert—

(88A) (1) Each local authority shall, on the application of any person (“the applicant”), in relation to— (a) a particular house, provide the applicant with— (i) the name of the owner included in its register by virtue of section 83(1)(a) or 87(2); (ii) the name of any person who acts for the owner in relation to a lease or occupancy arrangement to which the house is subject included in its register by virtue of section 83(1)(c), 87(2) or 88(2); (iii) the address to which correspondence with the relevant person should be directed included in its register by virtue of section 83(1)(ca) or 87(2); and (iv) any information included in its register by virtue of section 87A(2). (b) a particular person, confirm to the applicant whether that other person is registered in its register. (2) A local authority may, on the application of any person, provide that person with such other information from its register as it thinks appropriate. (3) Information provided under subsection (2) may be provided subject to such conditions as the local authority thinks appropriate. (4) Despite subsection (1), a local authority may withhold information where it considers that providing the information would be likely to jeopardise— (a) the safety or welfare of any person; or (b) the security of any premises.

(8) In section 93(5) (circumstances in which offence is not committed)—

(a) the word “but” which follows paragraph (a) is repealed,

(b) after paragraph (a), insert—

(aa) the local authority has not, during the year which immediately preceded the making of the application, refused to enter the relevant person in pursuance of an earlier application under section 83; (ab) the application is accompanied by the fee determined under section 83(2); and

(9) In section 97(6) (restriction on court's power to require tenant to pay rent etc.), for “order” substitute “ decision ”.

(10) In section 97(7) (circumstances in which tenant is not required to pay sums)—

(a) for “sheriff principal” substitute “ court hearing the appeal ”;

(b) for “order” substitute “ decision ”.

(11) In section 101 (interpretation of Part 8), after subsection (1) insert—

(1A) This subsection applies where— (a) a person other than the owner of a house is the landlord in relation to a lease or occupancy arrangement by virtue of which another person uses the house as a dwelling; and (b) that other person is not a member of the family of the owner or of the person who is the landlord. (1B) Where subsection (1A) applies, both— (a) the person who is the landlord; and (b) any other person who acts for that person in relation to the lease or occupancy arrangement, shall, for the purposes of this Part, be treated as having been appointed by the owner to act for, and as acting for, the owner in relation to a lease or occupancy arrangement by virtue of which a person who is not a member of the family of the owner may use the house as a dwelling.

177

After section 68 of the Housing (Scotland) Act 2001 (asp 10), insert—

(68A) (1) This subsection applies where— (a) a local authority has disposed of an interest in land to a registered social landlord (“RSL 1”) under section 12 of the 1987 Act before the date on which this section came into force, (b) sections 191 to 193 and section 203(1) of the 1987 Act no longer apply to that local authority by virtue of an order made under section 94 of this Act, (c) the Scottish Ministers are satisfied that it is appropriate for RSL 1 to authorise another registered social landlord to exercise any of RSL 1's housing management functions if RSL 1 is to manage its houses in a manner which is consistent with the spirit of any notice served on tenants for the purposes of paragraph 3(2) or (3) of schedule 9 in relation to the disposal, and (d) less than 5 years have passed since this section came into force. (2) Where subsection (1) applies, the Scottish Ministers may direct RSL 1 to authorise another registered social landlord (“RSL 2”) to exercise such of RSL 1's housing management functions as may be specified in the direction in place of RSL 1 on such terms, if any, as may be so specified; and both RSL 1 and RSL 2 must comply with the direction. (3) RSL 1 may not, while a direction under subsection (2) remains in force, authorise any person other than RSL 2 to exercise any functions specified in the direction. (4) A direction made under subsection (2) must be published in such manner as the Scottish Ministers think fit. (5) Any authorisation given in pursuance of a direction made under subsection (2) continues to have effect for so long as the direction has effect. (6) A direction made under subsection (2) continues to have effect notwithstanding the fact that the power to make that direction has expired by virtue of subsection (1)(d). (7) In this section “housing management functions” means functions relating to the management of houses.

178

In section 58(3) (permissible purposes of registered social landlords) of the Housing (Scotland) Act 2001 (asp 10)—

(a) in paragraph (a), for the words “, either exclusively or together with other persons” substitute “ (or for its residents and other persons together) ”,

(b) after paragraph (f) insert—

(g) promoting or improving the economic, social or environmental well-being of— (i) its residents (or its residents and other persons together), or (ii) the area in which the houses or hostels it provides are situated.

Strategy for improving home energy efficiency

179

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Amendment of Housing (Scotland) Act 1988

180

After subsection (6) of section 18 (orders for possession of a house let on an assured tenancy) of the Housing (Scotland) Act 1988 (c. 43), insert—

(6A) Nothing in subsection (6) above affects the sheriff's power to make an order for possession of a house which is for the time being let on an assured tenancy, not being a statutory assured tenancy, where the ground for possession is Ground 15 in Part II of Schedule 5 to this Act.

Part 9 — Rights of entry

Rights of entry: general

181

(1) Any person authorised by a local authority is entitled to enter—

(a) any land or premises for the purposes of enabling or assisting the local authority to decide whether any part of its area should be designated as an HRA,

(b) any premises for the purposes of enabling or assisting the local authority to decide whether—

(i) to serve a work notice or demolition notice,

(ii) any such notice has been complied with, or

(iii) to grant a certificate under section 60 in relation to work required by a work notice,

(c) any premises which the local authority is required or authorised by Part 1 to carry out work in or to demolish, for the purposes of doing so,

(d) any premises for the purposes of enabling the local authority to—

(i) decide whether to make a maintenance order,

(ii) consider or devise a maintenance plan,

(iii) decide whether a maintenance plan has been implemented, or

(iv) do anything which the local authority is authorised by section 48(2) or 49(1) to do,

(e) any living accommodation for the purposes of enabling or assisting the local authority to decide whether—

(i) the living accommodation is an HMO which requires to be licensed under Part 5,

(ii) to grant, vary or revoke an HMO licence in relation to the living accommodation,

(iii) a condition included in an HMO licence has been breached,

(iv) any person has failed to comply with a requirement made by a temporary exemption order,

(v) any person has failed to comply with a requirement made under section 145(2),

(vi) to serve an HMO amenity notice,

(vii) an HMO amenity notice has been complied with,

(viii) to grant a certificate under paragraph 7 of schedule 5 in relation to work required by an HMO amenity notice.

(1A) Any person authorised by a third party applicant is entitled to enter any house in respect of which an application under section 22 may be made for the purposes of enabling or assisting the third party applicant to decide whether to make an application under section 22(1A).

(2) A member of the First-tier Tribunal , and any person authorised by any such member, is entitled to enter any house in respect of which an application under section 22(1) or (1A) has been referred to the First-tier Tribunal for the purposes of enabling or assisting the First-tier Tribunal to—

(a) determine the application under section 24(1),

(b) decide whether the landlord has complied with, or is likely to comply with, any repairing standard enforcement order made by the First-tier Tribunal in pursuance of that application, or

(2A) A member of the First-tier Tribunal , and any other person authorised by any such member, is entitled to enter any house in respect of which a decision has been made under section 28A(3) to assist the landlord's exercise of the landlord's right of entry under subsection (4) of this section for the purpose of enabling the landlord to exercise such right of entry.

(3) The owner of any premises, or any person authorised by the owner, is entitled to enter the premises for the purposes of—

(a) carrying out work required by a work notice or an HMO amenity notice,

(b) carrying out a demolition required by a demolition notice, or

(4) A landlord in a tenancy to which Chapter 4 of Part 1 applies, or any person authorised by the landlord, is entitled to enter the house concerned for the purpose of—

(a) viewing its state and condition for the purpose of determining whether the house meets the repairing standard, or

(b) carrying out any work necessary to comply with the duty in section 14(1)(b) or a repairing standard enforcement order.

(5) An authorisation under subsection (1) to (4) must state the particular purpose or purposes for which the entry is authorised.

(6) Any person who inspects a house in exercise of a right conferred by subsection (2) must provide the First-tier Tribunal with a report of that inspection.

Warrants authorising entry

182

(1) A sheriff or a justice of the peace may by warrant authorise any person entitled to exercise a right conferred by subsection (1) , (1A) , (2) or (2A) of section 181 to do so, if necessary using reasonable force, in accordance with the warrant.

(2) A warrant may be granted under subsection (1) only if the sheriff or justice is satisfied, by evidence on oath—

(a) that there are reasonable grounds for the exercise of the right in relation to the land or premises concerned, and

(b) that—

(i) the exercise of the right in relation to the land or premises has been refused,

(ii) such a refusal is reasonably expected,

(iii) the land is, or premises are, unoccupied,

(iv) the occupier is temporarily absent,

(v) the case is one of urgency, or

(vi) that an application for admission would defeat the object of the proposed entry.

(3) A sheriff or justice may not be satisfied that a condition specified in any of heads (ii) to (iv) of subsection (2)(b) is met unless the sheriff or justice is also satisfied that notice of intention to apply for a warrant has been given to the occupier of the land or premises concerned.

(3A) In relation to an application for a warrant under section 181(1A), the reference to the occupier in subsection (3) is to be read as including the tenant, the landlord and any known agent of the landlord.

Rights of entry: constables

183

(1) A constable who suspects with reasonable cause that any person is committing or has committed an offence under section 28, 39 or 154 may, at any reasonable time, enter any land or premises for the purpose of obtaining evidence of the offence.

(2) A sheriff or a justice of the peace may by warrant authorise a constable authorised to exercise the power conferred by subsection (1) to do so, if necessary using reasonable force, in accordance with the warrant.

(3) A warrant may be granted under subsection (2) only if the sheriff or justice is satisfied, by evidence on oath, that there are reasonable grounds for suspecting that an offence under section 28, 39 or, as the case may be, 154 is being or has been committed in relation to the land or premises concerned.

Rights of entry: supplemental

184

(1) A right to enter any land or premises conferred by or under this Part includes a right to enter for the same purpose—

(a) in the case of land, any land adjacent to it, and

(b) in the case of any part of any premises, any land adjacent to that part and any other part of those premises.

(2) Any person who enters any land or premises in exercise of a right conferred by or under this Part is entitled to—

(a) survey and examine the land or premises, and

(b) do anything else which is reasonably required in order to fulfil the purpose for which entry is taken.

(3) A right to enter any land or premises conferred by or under this Part may be exercised only at a reasonable time.

(4) The occupants of the land or premises concerned must be given at least 24 hours' notice before any person exercises any such right in relation to it unless—

(a) the situation is urgent, or

(b) the person entitled to exercise the power considers that giving such notice would defeat the object of the proposed entry.

(4A) In relation to the exercise of the right conferred by section 181(1A), the reference to occupants in subsection (4) is to be read as including the tenant, the landlord and any known agent of the landlord.

(5) A person authorised to exercise any right conferred by or under this Part must, if required to do so, produce written evidence of that authorisation.

(6) Subsection (5) does not apply to a constable in uniform seeking to exercise a right without warrant.

(7) A right conferred by this section applies despite any term to the contrary in any tenancy, occupancy arrangement or other agreement.

(8) Any person who enters any land or premises in exercise of a right conferred by or under this Part—

(a) is entitled, subject in the case of a right exercisable under a warrant to the terms of the warrant, to take on to the land or into the premises—

(i) such other persons, and

(ii) such equipment,

as may be reasonably required for the purposes of assisting that person,

(b) must leave the land or premises as effectually secured against unauthorised entry as that person found it, and

(i) the exercise of the right or power, or

(ii) any failure to comply with paragraph (b),

unless the damage is attributable to the fault of the person who sustained it.

(9) Any question of disputed compensation under subsection (8)(c) is to be determined by arbitration; and, where there is no agreement as to who is to be appointed as arbiter, as to the procedure to be followed at the arbitration or as to the defraying of related expenses, the Scottish Ministers must appoint an arbiter, specify the procedure or, as the case may be, determine liability for expenses.

(10) A warrant granted under section 182 or 183 continues in force until the purpose for which the warrant was issued has been fulfilled or, if earlier, the expiry of such period as the warrant may specify.

(11) Any person who, without reasonable excuse, prevents or obstructs any other person from doing anything which is authorised by a warrant granted under section 182 or 183 is guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.

Part 10 — General and supplementary

Equal opportunities

185

(1) The Scottish Ministers and local authorities must perform the functions given to them by this Act in a manner which encourages equal opportunities and in particular the observance of the equal opportunity requirements.

(2) “Equal opportunities” and “equal opportunity requirements” have the same meanings in this section as they have in Section L2 of Part 2 of Schedule 5 to the Scotland Act 1998 (c. 46).

Power to obtain information etc.

186

(1) A local authority may, for the purpose of enabling or assisting it to exercise any function conferred on it by this Act in relation to any land or premises, serve notice on any person who appears to it to be a person falling within subsection (3) requiring the person to—

(a) state in writing to the local authority—

(i) the nature of that person's interest in the land or premises, and

(ii) the name and address of any other person known to that person as having an interest in the land or premises, and

(b) provide the local authority with any other information about the land or premises that it may reasonably request.

(2) Where a notice under subsection (1) is served on a person who appears to the local authority to be occupying land or premises for the purpose of enabling or assisting the local authority to decide whether there is any living accommodation on the land or premises which is an HMO which requires to be licensed under Part 5, the notice may also require the person to disclose the relationship (if any) between that person and any other occupants.

(3) A person falls within this subsection if the person—

(a) owns or occupies the land or premises concerned, or

(b) receives rent, directly or indirectly, in respect of that land or those premises.

(4) Any person who, having been required by a notice under subsection (1) to give information to a local authority—

(a) without reasonable excuse, refuses or fails to give that information, or

(b) knowingly or recklessly makes any statement in respect of that information which is false or misleading in a material particular,

is guilty of an offence and liable on summary conviction to a fine not exceeding level 2 on the standard scale.

(5) Nothing in this section authorises a local authority to require the disclosure of any information if such disclosure would make the person holding it susceptible under any enactment or rule of law to any sanction or other remedy.

Formal communications

187

(1) A “formal communication” means any—

(a) notice,

(b) notification,

(d) consent,

(e) confirmation,

(f) requirement,

(g) request,

(h) order,

(i) application (other than an application to a court),

(j) licence,

(k) acknowledgment, or

(l) decision,

used under or for the purposes of this Act.

(2) A formal communication must be in writing.

(3) A formal communication is served on or, as the case may be, submitted, given, made or issued to, a person if it is—

(a) delivered to the person at the place mentioned in subsection (4),

(b) sent, by post in a prepaid registered letter or by a service which provides for the delivery of the communication to be recorded , to the person at that place, or

(c) sent to the person in some other manner (including by electronic means) which the sender reasonably considers likely to cause it to be delivered to the person on the same or next day.

(4) The place referred to in subsection (3) is—

(a) where the person is an individual, to the person at that person's place of business or usual or last known place of abode,

(b) where the person is an incorporated company or body, to the secretary, chief clerk or chief executive of the company or body at its registered or principal office, or

(5) Where the person to which a formal communication is to be delivered or sent is an incorporated company or body, the sender complies with subsection (3) by delivering or sending it to the secretary, chief clerk or chief executive of the company or body.

(6) A formal communication which is sent by electronic means is to be treated as being in writing if it is received in a form which is legible and capable of being used for subsequent reference.

(7) A formal communication sent under subsection (3)(c) is, unless the contrary is proved, to be treated as having been delivered on the next working day after the day on which it was sent.

(8) In subsection (7), “working day” means any day other than a Saturday, a Sunday or a day which, under the Banking and Financial Dealings Act 1971 (c. 80), is a bank holiday in Scotland.

(9) Subsection (10) applies where a person is unable to deliver or send a formal communication to the owner or occupier of any house or other premises or other living accommodation because that person is not (having made reasonable inquiries) aware of the name or address of that owner or occupier.

(10) Where this subsection applies, the formal communication may be served on or, as the case may be, submitted, given, made or issued to the owner or occupier concerned by addressing a copy of it to “The Owner” or, as the case may be, “The Occupier” of the house or other premises or other living accommodation (describing it or them) and causing a copy of it to be displayed on or near the house or other premises or other living accommodation.

Forms

188

(1) The Scottish Ministers may by regulations make provision as to the form and content of any formal communication authorised or required to be used under or for the purposes of this Act.

(2) Any formal communication in respect of which provision is made by such regulations must be used in the form provided for, or in a form as close to it as circumstances permit.

Offences by bodies corporate etc.

189

(1) Where an offence under this Act committed—

(a) by a body corporate, is committed with the consent or connivance of, or is attributable to any neglect on the part of, a person who—

(i) is a director, manager or secretary of the body corporate, or

(ii) purports to act in any such capacity,

(b) by a Scottish partnership, is committed with the consent or connivance of, or is attributable to any neglect on the part of, a person who—

(i) is a partner, or

(ii) purports to act in that capacity,

(c) by an unincorporated association other than a Scottish partnership, is committed with the consent or connivance of, or is attributable to any neglect on the part of, a person who—

(i) is concerned in the management or control of the association, or

(ii) purports to act in the capacity of a person so concerned,

the individual (as well as the body corporate, Scottish partnership or, as the case may be, unincorporated association) is guilty of the offence and is liable to be proceeded against and punished accordingly.

(2) Where the affairs of a body corporate are managed by its members, subsection (1) applies in relation to the acts and defaults of a member in connection with the member's functions of management as if the member were a director of the body corporate.

Ancillary provision

190

(1) The Scottish Ministers may by order make such incidental, supplemental, consequential, transitional, transitory or saving provision as they consider necessary or expedient for the purposes or in consequence of this Act.

(2) An order under subsection (1) may modify any enactment, instrument or document.

Orders and regulations

191

(1) Any power of the Scottish Ministers under this Act to make orders or regulations is exercisable by statutory instrument.

(2) Any such power includes power to make—

(a) such incidental, supplemental, consequential, transitional, transitory or saving provision as the Scottish Ministers think necessary or expedient,

Reading this document does not replace reading the official text published on legislation.gov.uk. Contains public sector information licensed under the Open Government Licence v3.0. We assume no responsibility for any inaccuracies arising from the conversion of the original CLML XML to this format.

This text is published under legislation.gov.uk's own terms of reuse, not a Legalize or public-domain licence. legislation.gov.uk
Open Government Licence v3.0 (attribution required)
© Crown and database right. Derived from content available under the Open Government Licence v3.0 from legislation.gov.uk.