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TENLAW: Tenancy Law and Housing Policy in Multi-Level Europe

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TENLAW: Tenancy Law and Housing Policy in Multi-Level Europe TENLAW: Tenancy Law and Housing Policy in Multi-level Europe Grant Agreement No.: 290694 Lead Beneficiary: Universitat Rovira i Virgili Deliverable No. 3.2: National Report for Scotland Author(s): Mark Jordan, University of Southampton Team Leader: Prof Peter Sparkes, University of Southampton National Supervisor: Prof Angus McAllister, University of the West of Scotland Peer reviewers: - Prof Lena Magnusson Turner, University of Oslo - Prof Per Norberg, University of Lund (Sweden) - Prof Pascal De Decker, University College Ghent - Tamara Petrović, International School for Social and Business Studies National Report for Scotland Table of Contents 1 Housing situation ...................................................................................................... 4 1.1 General features ................................................................................................ 4 1.2 Historical evolution of the national housing situation and policy ......................... 5 1.3 The current situation ........................................................................................ 11 1.4 Types of housing tenure in Scotland ................................................................ 24 1.5 Other general aspects ...................................................................................... 37 2 Economic urban and social factors ......................................................................... 39 2.1 Current situation of the housing market ........................................................... 39 2.2 Issues of price and affordability ........................................................................ 43 2.3 Tenancy contracts and investment .................................................................. 46 2.4 Other economic factors .................................................................................... 48 2.5 Effects of the current crisis ............................................................................... 50 2.6 Urban aspects of the housing situation ............................................................ 52 2.7 Social aspects of the housing situation ............................................................ 56 3 Housing policies and related policies ..................................................................... 58 3.1 Introduction ...................................................................................................... 58 3.2 Governmental actors ........................................................................................ 60 3.3 Housing Policies .............................................................................................. 66 3.4 Urban policies .................................................................................................. 75 3.5 Energy policy ................................................................................................... 77 3.6 Subsidization .................................................................................................... 80 3.7 Taxation ........................................................................................................... 87 4 Regulatory types of rental tenures.......................................................................... 89 4.1 Tenancy relationships in Scotland ................................................................... 89 4.2 Regulatory types of tenures without a public task ............................................ 90 4.3 Regulatory types of tenures with a public task ................................................. 93 5 Origins and development of tenancy law .............................................................. 101 6 Tenancy regulation and its context ....................................................................... 112 6.1 General introduction ....................................................................................... 112 6.2 The preparation and negotiation of tenancy contracts ................................... 121 6.3 Conclusion of tenancy contracts .................................................................... 135 2 6.4 Contents of tenancy contracts ........................................................................ 150 6.5 Implementation of tenancy contracts ............................................................. 172 6.6 Termination of tenancy contracts ................................................................... 188 6.7 Enforcing tenancy contracts ........................................................................... 205 6.8 Tenancy law and procedure ‘in action’ ........................................................... 208 7 Analysing the effects of EU law and policies on national tenancy policies and law212 7.1 EU policies and legislation affecting national housing policies ....................... 212 7.2 EU policies and legislation affecting national tenancy laws ............................ 214 7.3 Table of transposition of EU legislation .......................................................... 221 8 Typical national cases (with short solutions) ........................................................ 226 8.1 Entering a lease ............................................................................................. 226 8.2 Lease and licence .......................................................................................... 228 8.3 Market rent ..................................................................................................... 230 8.4 Joint tenants ................................................................................................... 231 8.5 Housing standards in the private rented sector .............................................. 232 8.6 Deposit protection .......................................................................................... 234 8.7 Rent arrears in private sector tenancy ........................................................... 236 8.8 Termination of a social rented tenancy .......................................................... 238 8.9 Responsibility for repair, unfair terms ............................................................. 240 8.10 Energy efficiency, repair. .............................................................................. 243 9 Tables .................................................................................................................. 245 9.1 Literature –Books and Articles ....................................................................... 245 9.2 Cases ............................................................................................................. 246 9.3 Abbreviations ................................................................................................. 251 3 1 Housing situation 1.1 General features The Tenlaw research project seeks to investigate tenancy law across Europe and make comparisons. This is the report on Scotland. It is slightly unusual in that Scotland is not a Member State of the EU but is (at present) a constituent part of the United Kingdom. A referendum will be held in 2014 on Scottish independence which would take place on the basis that Scotland applied to become a Member State. Part 1 of the Report is focused upon the Scottish housing situation and housing policies while in Part 2 attention shifts to Scottish residential tenancy law. This part begins with a description of general features of housing in Scotland it details economic, social and urban aspects before describing housing policy, taxation and subsidisation and concludes by detailing the regulatory types of rental tenures in Scotland. As well as providing a brief history of the development of housing in Scotland the paper sheds light on the impact of the recent economic troubles. 4 1.2 Historical evolution of the national housing situation and policy Distinctiveness of Scots law Scotland is not (as of the start of 2014) a Member State of the EU, but rather a constituent part of the United Kingdom.1 Its inclusion as a reporting state to the Tenlaw project therefore calls for some preliminary explanation. The Scottish legal system is a mixed legal system which draws upon common law and civil law influences.2 Scots law has a long civil law tradition which originated in the use of uncodified procedural rules in dispute resolution, in line with the Romano- Dutch legal tradition. Civilian aspects of Scots law, influenced indirectly by Roman law, were strengthened in the eighteenth century through specific writings of specific academics (for example Lord Stair), known as Institutional Writings. In Scots law these were one of four recognised sources of law, in addition to legislation, legal precedent and custom. Scottish common law developed in tandem both with the civil law and also the English common law system. At a mechanical level Scots common law bears much in common with the English tradition, in that both systems operate through a scheme of legal precedent, so case law figures prominently in legal exposition. Scotland therefore has a very distinctive legal system at the time of the union with England. This is marked by a very distinctive terminology which continues to this day. This was preserved after the union. One reason is that the initial form of union was a personal union of thrones which arose on the death of Queen Elizabeth I of England (in 1603) when the Scottish King James VI was called to London to reign as James I of England. The subsequent legal union was the reverse, a takeover by Hanoverian
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