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The Private Housing (Tenancies) (Scotland) Act 2016 introduces a new type of tenancy in Scotland, under which it is possible for a tenant’s partner or other family members to inherit their tenancy following their death.  This Insight highlights the requirements which must be met in order to take advantage of the new provisions.

The New Private Residential Tenancy

Under the Act, which came fully into force this month, the new private residential tenancy replaces the two standard forms of lease currently used for private housing in Scotland, namely the short assured tenancy and the assured tenancy.  Going forward, a private residential tenancy will be a tenancy where (a) a dwelling is let to an individual, (b) the tenant occupies the property as their only or principal home, and (c) it is not a tenancy which the Act states cannot be a private residential tenancy. Examples of excluded tenancies include those for student lets and holiday lets. 

Inheriting a Tenancy

An important feature of this new type of tenancy is the fact that it can be inherited by certain classes of beneficiary following the death of a tenant.   The categories of those who can potentially inherit include the tenant’s spouse or partner, other family members and resident carers. 

Various conditions must be met before a beneficiary can inherit.  For spouses, civil partners and partners, the property must have been occupied as the bereaved party’s principal or only home at the time of death and the landlord must have been notified of this in writing.  For non-married partners, the bereaved partner must have been in occupation for at least 12 months prior to the death.  There is no such time requirement for spouses or civil partners.

Where the potential beneficiary is another relative of the tenant, the family member must be at least 16, be occupying the property as their principal or main home and have done so for the last 12 months. Again, the landlord must be notified that the family member is occupying the property.  Any time during which the partner occupied the property prior to the notification being is not taken into account for these purposes.  The same requirements apply to resident carers, who must also have given up a previous only or principal home to qualify.

Notification

As noted above, where more than one person is occupying a property but the tenancy is held in the name of one party only, it is vital that the landlord is notified if the non-tenant party or parties may wish to inherit the tenancy in the future.  This notification should be served as soon as possible in order to start the 12 month clock running.

If you require assistance in serving this notification or should you have any queries about the new private residential tenancy, please get in touch with any member of the Stronachs Private Client Team

Karen Oliver, Associate

Chambers UK 2018

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