It is not uncommon for landlords and tenants to enter various tenancy agreements in respect of the same property, especially where the tenant has been in occupation for a number of years. Both parties may well have had good intentions, but signing subsequent agreements can have unintended or unforeseen consequences.
A recent decision of the Upper Tribunal has clarified in which circumstances parties signing a new agreement will constitute renunciation of the earlier lease.
In McCallum v Wright (2023 UT 25), Mr McCallum had occupied the property since 1993. No written lease was provided when the he initially took occupation and accordingly the tenancy was an assured tenancy (AT) in terms of the Housing (Scotland) Act 1988. In September 2006, the landlord served on the tenant a form AT5. Shortly thereafter on 1st October 2006, parties signed a written lease which bore to be a short assured tenancy (SAT) commencing on that date.
Mr Wright, who had inherited the property from his late aunt, raised eviction proceedings and the First-tier Tribunal granted an eviction order under Section 33 of the 1988 Act in April 2023. Mr McCallum appealed stating the tenancy was an assured tenancy, in which case eviction under Section 33 was not possible.
The FtT found that in signing the SAT in October 2006 the tenant agreed to renounce his original assured tenancy and to then enter into a new SAT.
The question before the Upper Tribunal was therefore whether it was open to parties where there is an AT to agree to terminate that tenancy and immediately enter an SAT for the same property. The UT considered the provisions of the Housing (Scotland) Act 1988 and ultimately held it was indeed possible for parties to renounce an existing assured tenancy and create a new one in this way. Such actions do not amount to ‘winkling’; the term given to a situation where a landlord persuades a tenant to enter a new agreement with less security of tenure.
Helpfully, the UT discusses how the position differs for Private Residential Tenancies (PRTs) under the Private Housing (Tenancies) (Scotland) Act 2016. The provisions of the 2016 Act are such that parties can only end a PRT in certain ways. Signing a new agreement will not imply renunciation of an earlier PRT.
This decision serves as a helpful reminder to landlords that the technical requirements of the 2016 Act must be followed to terminate a PRT. For example, a landlord cannot release one joint tenant from a PRT simply by signing a fresh PRT in the name of the remaining tenant alone.
If you are unsure of the type or status of the agreement with your tenant, contact our PRS team for advice.
