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How The Antisocial
Behaviour etc (Scotland)
Act 2004 Impacts on
Landlords, Tenants and
Agents
The introduction of the
Antisocial Behaviour etc
(Scotland) Act 2004 has
significant implications
for landlords, tenants
and agents. But with a
substantial number of
landlords and tenants
currently unfamiliar
with how the legislation
affects them, it is
vital that they seek
professional advice from
a property manager as a
matter of priority.
The Act gives local
authorities powers to
use against the
landlord, in addition to
any action that might be
taken directly against
the perpetrators of
antisocial behaviour.
And in the event of a
landlord failing to
respond to local
authority requests to
improve management
practices, it enables
the local authority to
serve an ‘antisocial
behaviour notice’
specifying actions that
the landlord must take
within a given time.
If the landlord does not
comply with the notice,
he or she will be
committing a criminal
offence and will be
liable on conviction to
a fine up to £5,000.
Furthermore, the local
authority will be able
to charge to the
landlord certain costs
due to any inactivity
and, if necessary,
pursue these costs as a
debt in the normal way.
The local authority can
also ask the sheriff
court for an order that
no rent should be
payable, stopping the
landlord’s flow of
income and acting as a
cumulative encouragement
for the landlord to take
the required action.
Moreover, the local
authority can ask the
sheriff court for an
order transferring the
management control of
the property to the
local authority, so that
it can deal with the
antisocial behaviour
problem itself.
The Act introduces a
registration scheme for
local authorities to
prepare and maintain a
public register of all
private landlords in
their area and specifies
that the landlord must
be judged a ‘fit and
proper’ person to let
houses.
In making this
judgement, the local
authority can consider
any previous convictions
and the landlord’s track
record on addressing
antisocial behaviour.
Should a landlord fail
the ‘fit and proper’
test, their application
for registration will be
refused.
From an agent’s
perspective the ‘fit and
proper’ test will likely
be difficult to apply in
practice. Not only is
the term ‘fit and
proper’ open to
interpretation by
different local
authorities in different
ways, but it will create
obvious difficulties for
agents managing the
affairs of any landlord
clients with whom they
have an arms length
relationship. Whilst the
Act places the
responsibility for
ascertaining whether a
landlord can be judged
‘fit and proper’ on a
property agent, in many
cases this will simply
be impractical.
A landlord who lets a
property without being
registered will be
committing a criminal
offence, the penalty for
which will be a fine of
up to £5,000. The local
authority will also be
able to serve a notice
that no rent is payable
by the occupier and any
Housing Benefit would
cease as no rent would
be payable.
Where tenants are
involved in various
types of anti-social
behaviour, the landlord
may be able to bring
court proceedings to
evict the tenant. The
precise grounds for
eviction depend on the
type of tenancy, but
where there has been a
criminal conviction for
immoral or illegal use
of the house, or where
the tenant or their
family or visitor are
causing a regular or
continuing nuisance or
annoyance by anti-social
behaviour, there will
generally be grounds for
eviction.
Valid grounds for
eviction by the courts
have already included
using a house for
prostitution, dealing
drugs, fencing stolen
property, persistent
abuse of the landlord,
excessive noise, racial
harassment and acts of
vandalism.
As most leases will
include a clause
expressly forbidding
anti-social behaviour,
the landlord can raise
an action for eviction
on the basis of the
breach of this tenancy
condition alone.
But whilst the Act makes
it the landlord’s
responsibility to ensure
that their tenants do
not commit any
anti-social behaviour,
this is clearly
something that will be
very difficult for a
landlord to control.
Given that landlords do
not have any authority
to serve missives on
their own tenants in
order to stop
anti-social behaviour,
how can they then be
held responsible for
tenants’ anti-social
behaviour?
As can be seen, the Act
has significant
implications for both
landlords and tenants.
It is imperative,
therefore, that both
parties seek advice from
a property agent who
will be able to advise
them on the details of
how the Act affects
them.
Jack Fulton is a
Director at Ross +
Liddell property
managers
ENDS
723 words
October 2005
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