The Rights of Tenants in the Public Sector in Scotland - Essay Example

Housing Law While the rights of tenants in the public sector in Scotland have gradually improved since 1980, the same cannot be said of their privatesector equivalents in relation to repairs and eviction. Introduction Through the Tenants Rights, Etc. (Scotland) Act 1980, council tenants were given the right to buy their homes (“Ethical Reflections,” 2004). From the time the constitutional Right to Buy was commenced on 3 October 1980, the rise in the sale of houses reached a dramatic 2.2 million properties all over Scotland. Almost one-third of the Scottish tenants availed of the Right to Buy from the local authorities, municipal firms and estate companies. Majority of these tenants gained from the statutory right. The total sales and capital receipts in Scotland’s housing stock was unexpected (Wilson, 1999) At some stage when the social housing was on the verge of collapsing, the Right to Buy made great contributions to the improvement of social change in council housing. However, only the high-income tenants were able to purchase the finest council estates. Those belonging to the small-earning tenants who are mainly dependent on welfare assistance were deprived of the privilege of better housing. The Right to Buy rather became discriminatory when only the rich tenants were favoured (Wilson, 1999). Whilst there were advantages from the elevated Scottish home ownership, the Right to Buy had its shortcomings too. This paper will show how the rights of tenants in the public sector in Scotland have gradually improved and how these tenancy rights have deteriorated in the private sector due to issues on repair and eviction. Tenants Rights, etc. (Scotland) Act 1980 Some tenant associations crusaded for a constitutional ‘tenants charter’ with rights such as occupancy protection, reasonable rental fees, discussions, and membership. Through this campaign, the Tenants Rights (Scotland) Act 1980 established protected occupancies and other rights for tenants. The rights of the 1980 Act included the Occupancy protection; Right to a rent in print; Right to defy unfair rental provisions; Right to sublet, or occupancy transfer; Right to modify the house; Right to information about relocation and swap rules; Right to succession; and Right to purchase (“A New Single Social Housing Tenancy for Scotland: Rights, Obligations and Opportunities,” n.d.). The introduction of the Tenant’s Charter for Scotland in 1991 established protected occupancy existing rights and made an assurance to further develop these rights by lawful ways, leading to the introduction of the Leasehold Reform Housing and Urban Development Act in 1993. This 1993 Act consisted of the right to repair; right to reimbursement for improvements; changes to the right to buy; rent to mortgage; and right to control (“A New Single Social Housing Tenancy for Scotland: Rights, Obligations and Opportunities,” n.d.). Controversies on Tenants’ Rights The influence of Thatcher on the Right to Buy from the Tenants’ Rights, etc. (Scotland) Act 1980 had a deep societal power in the significant rise in landlord-tenure. Under the Right to Buy, the yearly sales of estates elevated to approximately 50,000 (“Right to Buy,” 2009). In the early 1980s, when the local government was the prime direct housing suppliers and when the Right to Buy with the option for tenants to choose a certain agreed landlord instead of the council serving the Housing Act 1988 became more favored by tenants, the importance of housing to the local authorities was observed to have greatly weakened (“Right to Buy,” 2009). Councils were compelled to put housing stock on the market at smaller sale value. Furthermore, the major stock transfer lessened council estate accounts excluding profits and expenditures and hindered the government’s capacity to perform maintenance and upgrading, consequently proving the policy to be costly for the local authorities (“Right to Buy,” 2009). The resentment of the public sector in the Labour Department to "Thatcherite" rules expressed the unclear position of the Right to Buy. A few labourers campaigned for its closure, although the Scottish Government remained in its position not to end the policy Act 1980. Grounds for constraint of the policy became stronger upon the discovery of the land developers’ abuse of the plot (“Right to Buy,” 2009). On the other hand, the land developer’s warning was seen to be legitimate. Land developers, with the only aim of putting their estates on the market, persuaded the paying occupants to purchase their houses without consideration to their paying capacity for the mortgage. Several previous tenants were rendered homeless when their properties were resold after three years of the tenants’ incapacity to pay. Generally, the losses gained from the purchase of estates, particularly the tenant’s accountability for house maintenance, outnumbered the amount of benefits presented to council tenants to purchase houses in the 1980s and 1990s (“Right to Buy,” 2009). Tenancy from a Private Landlord In 1989, a new form of tenancy in Scotland under Part II of the Housing (Scotland) Act 1988, introduced the assured tenancy policy which is now the standard form of tenancy agreement with a private landlord (“Assured Tenancies in Scotland - Your Rights and Responsibilities,” 1999). On the condition that the agreement between tenants and private landlords are kept, assured tenants are given the right to reside in their homes for as long as they desire and the right to keep the home in a sensible state of repair. However, arrears in rent, house damages, or breach of the tenancy contract, could eventually result to eviction (“Problems with your landlord – Private landlord,” 2009). Short assured tenants, on the other hand, have the right to stay in their houses until the tenancy agreement expires except in some cases of arrears in rent, damages in property, and breach of contract by the tenant wherein the private landlord has grounds for eviction (“Problems with your landlord – Private landlord,” 2009). Assured tenants and short-assured tenants have equal rights to keep their homes in good quality repair (“Problems with your landlord – Private landlord,” 2009). The Landlord’s General Responsibilities on Repair Whether it is assured tenancy or short-assured tenancy, a landlord has responsibilities concerning repairs. The landlord must keep in repair and working order: The arrangement and external premises, including drainage, roofs and pipes; electrical wiring; water and gas pipes; baths and toilets; and heaters are full responsibilities of the landlord. The landlord is generally accountable for repairs to basic parts of the house. Regardless of what was printed on the tenancy contract, the landlord is lawfully obligated to his responsibilities. Nonetheless, some landlords may resort to repossession of the estate or refuse renewal of tenancy contract when tenants demand repairs (“Housing – In Scotland,” 2009). Key Issues in Housing Quality in the Private Sector The Extent of Disrepair and Obsolescence in Private Sector: The majority of the private sector housing in Scotland is in excellent state. On the other hand, some of the estate properties, endure serious disrepair. Attributable to the disregard of the necessary repairs, some estates are no longer wind and water tight. A few houses even have lead content in the hydro supplies and extremely deficient energy supplies. Several of Scotland’s private sector estates fall short of meeting the acceptable standard (“The First Report of the Housing Improvement Taskforce,” 2002). Predominantly in older properties of the private tenancy sector, crises of disrepair resulting from maintenance deficiencies are found. Whilst there are facts that houses in the more secluded countryside areas suffer inferior condition than those in metropolitan areas; it is still ambiguous to say that the entire condition of the housing stock in the private sector is fully deteriorated. However, it is apparent that disrepair concerns have increased dramatically as the property ages (“The First Report of the Housing Improvement Taskforce,” 2002). Funding Repairs in Private Sector Housing: Most tenants in the private sector can maintain and manage to pay for immediate emergency repairs in their homes. In some families, particularly the average earning ones, housing repairs are not top-priority. Depending on particular living standards of tenants, some may prefer to expend more on unnecessary expenditures than vital repairs in the estate. Only a minority of owners can provide for repair costs and home maintenance. Financing repairs pose an additional burden to low-income tenants. These tenants are unwilling to implement "free equity" to subsidize needed repairs (“The First Report of the Housing Improvement Taskforce,” 2002). By Scottish law, only a few helpful solutions are available to tenants regarding the private sector landlord’s obligations on repair. Because of comparatively inconsistent contract on tenancies, coupled with inaccessibility to available solutions, majority of the tenants who are at risk of losing their houses may not wish to avail of these remedies (“The First Report of the Housing Improvement Taskforce,” 2002). Arrangements for the Management of Communal Repairs and Maintenance Work: In some areas of Scotland, landlords hire estate organisation negotiators. Majority of flat owners are ignorant of their repair responsibilities whilst a few of them cannot afford common repairs. Negotiation plan for disagreement resolution and recuperation from repair costs from non-supportive landlords are restricted and inadequate. Duplications of these dilemma in flat estates under the Right to Buy are compounded by non-supportive landlords of the principal development agendum mapped by their previous landlord (“The First Report of the Housing Improvement Taskforce,” 2002). Government Powers for Tackling Condition Problems in Private Sector Housing: The Scottish government should use the local housing approach in recognition of disrepair concerns and solution plans. Sustenance of the Scottish structure for local housing stratagem along with an innovative nationalized housing excellence standard should be developed. Assessments of the legislation governing less acceptable standard housing is necessary. Moreover, a need for evaluation of the legislation governing the government’s ability to implement repairs and improvements in private housing sector, the stipulation of obligatory funding and authority for repairs should therefore be implemented (“The First Report of the Housing Improvement Taskforce,” 2002). Deficient of precise control on encouraging high-quality repair and maintenance schemes in the private sector housing, the Scottish government with its limited power, was inclined to develop poor housing conditions instead of the lawful communal repair plans. Nevertheless, the government, in order to ascertain valuable financing, needs to prioritise repair and improvement expenditures (“The First Report of the Housing Improvement Taskforce,” 2002). Harassment and Unlawful Eviction The Scottish law defends tenants in the private sector residential land from harassment and illegal eviction. The government passed the laws stating that harassment and illegal eviction are considered criminal offences; and that harassed and evicted tenants can file damages through Scottish courts. All people residing in residential lands, whether assured or short-assured tenants, are protected by the law against harassment and unlawful eviction (“Harassment and Illegal Eviction,” 2009). It is stated in the Scottish Government Booklet - Protection against Harassment and Unlawful Evictions that despite the consequences, forceful eviction of a tenant from his estate is a criminal offence. Repossession of the property must be acquired through lawful process by acquiring a Decree for Eviction from the Sheriff’s Court. Sheriff Officers will decide the validity of eviction (“Harassment and Illegal Eviction,” 2009). Scotland’s Current System of Sheriff Court The sheriff court is an all-purpose court used for housing cases, and jurisdictions on civil and criminal offences. The sheriff court system is decided by Sheriff Officers with insufficient special knowledge in housing law matters (O’Carrol & Scott, 2004). Housing court procedures are complicated, long, expensive and needs an expert’s opinion. Whilst tenants’ are entitled to a legal advice, tenants are frequently non-counseled and non-represented due to the restricted housing law knowledge of the Sheriff officers. As seen in most eviction cases, inequality and discrimination frequently happen. Tenants have a greater possibility of losing because they are not legally advised and represented in court (O’Carrol & Scott, 2004). The Sheriff’s Lack of Consistency: Due to the Sheriff’s lack of knowledge on housing cases, substantial criticisms have been made concerning inconsistencies in proclaiming judgments. The Scottish Affairs Committee condemned sheriffs for errors in eviction decisions even when lawfully adequate grounds were presented and verified. On the other hand, regardless of the prevalent disapproval, only a minority of the housing cases was defeated on the ‘reasonableness test’ and landlords generally gained through grounds of anti-social behaviour (O’Carrol & Scott, 2004). Rent Arrears and Eviction Eviction actions in Scotland elevated in 2005. Almost all cases were due to rent arrears. Some tenants were either forcefully evicted or deserted their houses. Payment delays in rent caused unnecessary evictions in the private sector housing, which gave way to the introduction of Section 12 of Homelessness etc (Scotland) Act 2003 as amendment to the Housing (Scotland) Act 1988. Section 12 obliges the Scottish court to make deliberations as to the degree to which rent arrears is caused by imbursement delay of housing assistance. This section also states that minimum of three months rent arrears are allowable by the court and subject to a validity test in which non-payment of lease is caused by failure or delay in the tenant’s housing assistance (Dailly, 2007). In such cases when rent arrears go beyond three months, it is considered an adequate reason for the Sheriff Court to allow the landlord’s repossession of the property. The court then issues a regulation for the tenant’s payment of total rent arrears (‘Tenant Eviction,” n.d.) Anti-Social Behavior and Eviction A drastic way for a landlord to deal with anti-social behaviour is through eviction, although for a majority of the landlords, it is an action taken only as a final option. Hunter and some colleagues (2000), gave an example of grounds for eviction for anti-social behavior when all problem resolutions fail: mediation undertaken either by an independent agency or by housing officers; responses to complaints using letters, personal visits, in-depth investigations, compromise techniques, education, and support; following investigations of complaints some tenants simply abandon their tenancies (Cited in “Social landlords’ use of legal remedies to deal with neighbor nuisance,” 2000). Although, in some instances, not all cases can be resolved through eviction from anti-social behaviour reasons. From 1996 to 1998, notices of repossession and possession calls on the basis of anti-social behaviour have dramatically increased (Hunter et al, 2000). Landlords believe that Scottish courts were merely reluctant in granting repossession orders. There were some cases of exceptionally troubling anti-social behaviour where such orders were granted for resolution of major management problems on estates and guarantee more proficient utilisation of sources. Although Scotland’s housing sector see eviction as only temporarily successful, disappointment in dealing with social behavioural reasons were transferred to the private sector. Some evicted tenants search for possible tenancies in the same locality but negotiated with a different land developing association. Therefore, regardless of repossession, the problem on anti-social behaviour may still persist, consequently decreasing neighbourhood assurance and trust, when landlords lack enforcement procedures (Hunter et al, 2000). Conclusion The use of private sector housing as a substitute to public sector housing for tenants who are either homeless or belonging to the low-earners bracket is one major concern of Scottish tenants. In the private sector tenancy housing, the leading crisis tenants confront is the constant deficiency in protection. Scotland is the single country with short-term tenancy of six months. Short-term tenancies do not provide a stable home for vulnerable families. Posing an actual dilemma for tenants, particularly the households dependent on welfare benefits, is the outlay of private rented housing actual problem. These are those people who make both ends meet. In addition, they also experience benefit losses. Failure to pay rent may result to eviction which eventually pulls them back to homelessness. Whilst in the private sector, housing conditions are improving, still, maintenance and repair issues on estates are posing considerable crisis. Main problems in several private rented homes consist insufficient heating, deficiency in water and gas supplies, external and interior problems, and poor electrical wirings. Majority of the tenants cannot afford immediate repairs. Their landlords resort to eviction when tenants fail to carry out repairs. Another concern for tenants is unlawful eviction taken on the grounds of anti-social behaviour (Keeble, 2008). The provision for a more protected occupancy for tenants should be taken seriously by the Scottish local authorities. The duration of tenancy should be increased and effectual petition against eviction should likewise be provided. The continuing unsteadiness that burdens the less fortunate Scottish citizens should be stopped (Keeble, 2008). References A new Single Housing Tenancy for Scotland: Rights, Obligations and Opportunities. (n. d.). Scottish Executive. Retrieved 8 December 2009 from: http://www.scotland.gov.uk/library2/doc10/nssh-01.asp?textonly=FALSE Assured Tenancies in Scotland – Your Rights and Responsibilities. (1999). Scottish Executive. Retrieved 8 December 2009 from: http://www.www.scotland.gov.uk/housing/leaflets/atsy-00.asp Dailly, M. (2007). Covering the Money Gap. Journal Online. Retrieved 8 December from: http://www.journalonline.co.uk/Magazine/52-12/1004788.aspx Ethical Reflections. (2004). Leeds Metropolitan University. Retrieved 7 December 2009 from: http://www. leedsmet.ac.uk/.../6BC0A8E3A4E74C45A69C0E79A49 CFED1_D56EDB3C7DC249F7ADE6A3A090FC567A.htm Harassment and Illegal Eviction. (2009). Perth and Kinross Council. Retrieved 7 December 2009 from: http://www.pkc.gov.uk › ... › Private tenants - advice and support Hunter, C. et al. (2000). Social landlords’ use of legal remedies to deal with neighbor Nuisance. Joseph Rowtree Foundation. Retrieved 8 December 2009 from: http://www.jrf.org.uk/.../social-landlords-use-legal-remedies-deal-with- neighbour-nuisance Keeble, S. (2008). Private Sector Rented Housing. Westminster Hall Debates. Retrieved 8 December 2009 from: http://www.theyworkforyou.com/whall/?id=2008-04-23b.482.0 O’ Caroll, D. & Scott, S. (2004). Improving Rented Housing Dispute in Scotland. Chartered Institute of Housing in Scotland. Retrieved 7 December 2009 from: http://www.cih.org/display.php?db=policies&id=468 Private Sector Tenancies. Citizen Advice. Retrieved 7 December 2009 from: http://www.adviceguide.org.uk/.../private_sector_tenancies_scotland.htm Problems with your landlord – Private landlord. (2009). Lawyer Locator. Retrieved 8 December 2009 from: http://www.lawyerlocator.co.uk › Personal Issues › Property Right to Buy. (2009). Politics.co.uk. Retrieved 7 December 2009 from: http://www.www.politics.co.uk › ... › Issue Briefs › Housing and planning Tenant Eviction. (n. d.). How to Guides. Retrieved 7 December 2009 from: http://www.howtobooks.co.uk/property/buy-to-let/eviction.asp The First Report of the Housing Improvement Taskforce. (2002). Scottish Parliament. Retrieved 7 December 2009 from: http://www.scottish.parliament.uk/business/research/pdf_res_brief/sb02-41.pdf Wilson, W. (1999). The Right to Buy. House of Commons Library. Retrieved 8 December 2009 from: http://www.parliament.uk/commons/lib/research/rp99/rp99-036.pdf Read More