3.Applications for Sub-Letting

DIRECTOR/PROPMANPOL/PM04/DMI/PB/23.05.11

Contents:

1.Introduction

2.Aims and Objectives

3.Applications for Sub-Letting

4.Criteria for Withholding Consent

4.1Notice Of Proceedings

4.2Order of Recovery for Possession of the Tenancy

4.3Rent Levels

4.4Rent Deposits

4.5Statutory Overcrowding

4.6Works Proposed by Barrhead Housing Association

4.7Absence Period

4.8Occupancy Rights

4.9Vulnerability

4.10Anti-Social Behaviour

1. Rent Increases
2. Appeals
3. Performance Monitoring
4. Equal Opportunities
5. Complaints Policy
6. Policy Review

Appendix 1: Internal Procedures/Operational Documents.

Document 1:Sub-Let Application Form

Document 2:Application Checklist

Document 3:Acceptance of Sub-let Request

Document 4:Refusal of Sub-let Request

Document 5:Appeal Application Form

Document 6: Notification Letter of Stage 1

Document 7: Reminder Letter of Stage 1

Document 8:Refusal Notification Letter after Stage 1

Document 9:Successful Appeals Letter at Stage 1

Document 10:Notification of Appeal Stage 2

Document 11:Refusal Notification Letter Stage 2

Document 12:Successful Appeal Letter Stage 2

Document 13:Rent Increase Letter From Tenant

Document 13a:Permission to Raise Rent

Document 13b:Refusal to Raise Rent Refusal to Raise Rent
1.Introduction

The purpose of this policy is to adhere to legal provisions that allow tenants to sub-let their tenancy as part of the Housing (Scotland) Act 2001.

1. Aims and Objectives

The Association has developed an Allocations Policy that promotes opportunities for people to apply for housing. For example, the Association publicises information about its housing list widely and encourages applicants to apply for housing. This policy is based on both law and good practice guidance.

It is recognised, however, that it may be appropriate – in limited circumstances – that existing tenants may wish to sub-let their property as a result we have developed this Sub-Let Policy.

This Sub-Let Policy is part of our general Allocation Policies, and explains when sub-lets may be considered.

The main objective of this policy is to adhere to the legal provisions that govern the sub-letting of a Scottish Secure Tenancy, this provision is the Housing (Scotland) Act 2001, Section 32 and schedule 5 Part 2.

1. Applications for Sub-Letting

Any tenant who has signed a Scottish Secure Tenancy agreement with Barrhead Housing Association and wishes to sub-let their tenancy must obtain written consent from the Association before they can sub-let all or part of their tenancy.

Barrhead Housing Association will not unreasonably withhold consent to a tenant

1. Criteria for Withholding Consent

Unfortunately reasonableness is not defined legally within the Housing (Scotland) Act 2001 as a result we will assess each case on its merits. However specific reasons mentioned in the Act where it may be reasonable to refuse consent are detailed below:

• A Notice of Proceedings has been served that specifies any of grounds 1 to 7 (Schedule 2).
• An order for recovery of possession has been made against the tenant.

• The rent proposed is not deemed to be reasonable by the Association.

• The deposit proposed is not deemed to be reasonable.

• The sub-letting would cause statutory overcrowding.

• Proposed works by the landlord that would affect the accommodation to be used by the subtenant, or other person living in the house as a result of the transaction.

4.1Notice Of Proceedings

Although it is reasonable to refuse a sub-letting request where a Notice of Proceedings is in force, each situation should be treated on its merits. Thus, where a Notice is in force because of rent arrears, but an arrangement is in place to pay the arrears and this arrangement is being adhered to, the Association will consider withdrawing the Notice and progressing the application to sub-let.

The Housing (Scotland) Act 2001, section 14 (5) empowers the Association to withdraw the Notice. Again, granting the sub-let request may assist the tenant to repay arrears more effectively, for instance, where the tenant takes up temporary employment elsewhere during the period of the sub-let.

It is important to remember that subtenants are deemed to be qualifying occupiers under the Housing (Scotland) Act 2001, section 14(6)) and are legally entitled to be party to court proceedings raised against the tenant(s). (Housing (Scotland) Act 2001, section 15)

4.2Order of Recovery for Possession of the Tenancy

Where an order for recovery of possession has been obtained, any sub-letting request will generally be refused, as the Association will be on the point of evicting the tenant, for example, because of serious rent arrears or serious anti-social behaviour.

4.3Rent Level

Rent levels charged by the tenant should be reasonable. This does not mean, however, that rents charged cannot be more than the current rent. The tenant may require to charge extra, for instance, to cover costs of additional furniture and insurance. Each case will be assessed on its merits however if the rent levels appear excessive the Association may refuse the request.

4.4Rent Deposit Levels

Deposits charged must not exceed 2 months’ rent as any further amount would be deemed to be a premium and therefore unlawful under the Rent (Scotland) Act 1984, section 90 (3).

Should the deposit be more than 2 months’ rent then the Association will refuse the application.

4.5Statutory Overcrowding

The Association will not consent to a sub-let application when it creates an overcrowding situation as defined by the Housing (Scotland) Act 1987, section 135-137.

4.6Works Proposed by Barrhead Housing Association

Before granting consent, the Association will check whether there are any works intended that are likely to affect the accommodation, for example, major improvement works that may change the nature of the house such as the size of accommodation.

4.7Absence Period

Where a tenant is leaving for an indefinite period and unable to specify when they will return, the Association may refuse the application. We will not normally grant a sub-let for more than 12 months.

4.8Occupancy Rights

The Association may refuse an application where another person’s occupancy rights are likely to be adversely affected if permission is granted, for example matrimonial separation.

4.9Vulnerability

The Association may refuse an application if the potential subtenant is unable to understand the terms of the sub-let, for example because of severe learning disabilities. The Association will seek the appropriate service for the sub-tenant to ensure that they are aware of their potential tenancy obligations.

4.10Anti-Social Behaviour

The Association may refuse an application if the proposed sub-tenant has a proven record of anti-social behaviour and believes that the anti-social behaviour will continue if the sub-let is granted.

The criteria for refusing consent is not exhaustive, the Association will assess each case on its individual merits.

1. Rent Increases

Tenants who have had permission from the Association to sub-let their tenancy must notify the Association of any proposed rent increase from the level initially agreed.

The tenant will be given a copy of the relevant letter to be used should they wish to propose a rent increases. (Document 13). The consent and refusal letters to rent increases are dealt with by Documents 13 (a) and (b) respectively. Sub-tenants are to be sent a copy of this correspondence.

6.Appeals

Should the Association refuse consent to a tenant to sub-let their tenancy they will have the right of appeal. This will be done through our Complaints Policy, a copy of which is available from the Association’s office.

7Performance Monitoring

Performance will be measured against targets using information on outcomes from:

• Number of applications received each month

• Number of applications granted and refused each month

• Number of appeals requested and heard each month.

• An assessment of applicants age, disability, gender and ethnicity

The above reports will be made to the Performance, Audit and Risk Sub-Committee on a quarterly basis.

8.Equal Opportunities

Barrhead Housing Association is committed to providing fair and equal treatment to all our customers.

The Association will not discriminate against anyone on the grounds of race, colour, ethnic or national origin, disability, religion, age, sexual orientation, marital status, civil partnerships, family circumstances, employment status or physical ability.

We will offer customers a range of options for communicating with us, since requiring to contact us may have to be in writing and this may be a deterrent, for example for people with poor literacy skills, visual impairment, or where first language is not English.

We will monitor use of our Sub-letting Policy and procedure for ethnic origin and disability to ensure that our procedures deliver fair outcomes for different groups of customers.

9.Complaints Policy

Barrhead Housing Association operates a Complaints Policy that is open and transparent, should any customer or service user feel the need to make a complaint against an individual or the organisation, the complaints policy and procedure will be implemented.

This is covered by a separate policy, you should request a copy if you wish to make a complaint.

In keeping records about complaints and in allowing access to our files we will comply with the legislative requirements including, Access to Person at Files Act 1987 and Data Protection Act 1998.

1. Policy Review

The Core Services Sub-Committee will review the Sub-Letting Policy at least every three years or subject to:

• New or revised legislation
• Changes in good practice
• Organisational change, e.g. revision of operational practices
• Views of tenants and other service users
• Auditing practices
• Resource requirements

Appendix 1 Internal Procedures

• Tenants who wish to apply to sub-let their tenancy should complete the application form (document 1) and seek the Association’s prior consent.

This document can be made available in alternative formats/different languages on request, or as required, for example, it can be produced in larger print to meet the needs of people with sight impairments or translated into different languages if English is not the first language.

The Housing Officer should meet with the tenant and the proposed subtenant(s) to complete the form and explain all relevant implications for both the tenant and any subtenant, for example, that the tenant remains legally responsible for the payment of rent.

The tenant and subtenant should also be advised of the obligations of the tenancy and actions that may be taken where tenancy conditions are breached, for instance, anti-social behaviour on the part of the subtenant.

• Once the application form is received it must be recorded in the Sub-letting Application book and a decision must be made by the Housing Officer to either refuse consent or grant consent within 1 calendar month of receipt of the application form.

• Where appropriate a tenancy reference will be requested for the proposed sub-let tenant.

If no decision is made within 1 month it may mean that permission has been granted to the applicant as we have failed to grant or refuse consent within the agreed time limit.

Should the Housing Officer deem it reasonable to refuse the application, the Housing Manager’s agreement must be secured prior to issuing the refusal letter.

• Where the Housing Officer grants permission, Document 1 should be used.

• Where the Housing Officer refuses permission, they should inform the tenant via Document 4 detailing the reason(s) for refusal and the appeal procedure.

• Should the applicant wish to appeal against the decision the Housing Manager should be informed immediately and a complaint form issued to the applicant.

Appendix 1: Operational Document 1 Sub-Let Application Form

1 Household Details:

Name of tenant(s) wishing to sub-let

Other Household Member Details

2.Property Address:

Type of House:

Size of House:

Adaptations

Heating Type

3.Reason(s) for Sub-letting

4 Do you intend to sub-let all, or only part of the house?

All ______Part ______

If all, what is your forwarding address and accommodation status,(e.g. private tenant)

5. How long do you intend to sub-let the property for?

6. Are you married? Yes/No

If yes, has your spouse consented to your application? Yes/No

If no, the spouse’s consent will be required to protect the spouse’s occupancy rights. (Discuss appropriate methods with the tenant of contacting the spouse to seek consent to the transaction).

7. Details of Proposed Sub-tenant Household

Name of Subtenant(s)

Current Address of Proposed Subtenant and where appropriate landlord

Other People to live with the Subtenant

8. What rent do you propose to charge the sub tenant?

What is the period of payment?

Weekly, Monthly, Other:

9. Any Other Issues?

I/We formally apply to sub-let my/our tenancy to (insert name(s)/signatures of the proposed subtenant(s)

Signature(s) of existing tenant(s):

Date of Application:

Witnessed by:

Housing Officer’s signature

Operational Document 2: Application Checklist

1Is a Notice of Proceedings in force? Yes/No

If yes, is it reasonable to refuse a sub-let request? Yes/No

If yes, specify reasons why ______

______

______

Remember that a subtenant is a qualifying occupier and is legally entitled to defend their interests in recovery of possession actions raised against the tenant (Housing (Scotland) Act 2001, section 14(6))

2Is an order for recovery of possession in force? Yes/No

If yes, refuse request to sub-let.

3Would consenting to the request result in statutory overcrowding? Yes/No

If yes, refuse request to sub-let

4Are there any works proposed by the Association that would affect the accommodation to be used by the proposed subtenant(s)? Yes/No No

If yes, specify what these are and state whether works are sufficient to justify refusal of the request to sub-let ______

______

5 Is the proposed subtenant aged 16 or over? Yes/No

If no, refuse the request to sub-let until the person reaches the required age.

6Is there any evidence for believing the proposed subtenant will be unable to fulfil the terms of tenancy, for example, a previous history of anti-social behaviour, or non-rent payment that is likely to continue in this tenancy?

Yes/No

If yes, specify reason(s) ______

______

7 Is there a spouse with occupancy rights in the matrimonial home? Yes/No

If yes, has the spouse consented to the sub-letting? Yes/No

If yes, append formal consent documentation. If no, refuse consent to sub-let.

8 Has request to sub-let been granted? Yes/No

Date granted: ______

Signature of Housing Officer: ______

If no, refer the case to the line manager for review.

9 Is the decision to refuse permission upheld by the line manager? Yes/No

If no, specify reasons ______

Signature of Line Manager: ______

Date: ______

Operational Document 3: Acceptance of Sub-let Request

Date

Name

Address

Dear (Name of tenant sub-letting),

Re: Request to Sub-let your Tenancy at

(address of property)

Further to your application to sub-let your tenancy to ______

______

(name of sub-let tenant), I am pleased to advise you that your application has been approved.

Could you please contact me on (insert phone number) to arrange a meeting with yourself, the sub-let tenant and I to finalise the details concerning the sub-let as follows:

• the date when the sub-let should begin
• handover of house keys
• repayment of outstanding payments (insert only if debt is owed)
• obligations of the sub-let tenant

I look forward to hearing from you,

Yours sincerely,

Housing Officer

Operational Document 4: Refusal of Sub-let Request

Date

Name

Address

Dear (Name of tenant sub-letting),

Re: Request to Sub-let your Tenancy at

(address of property)

Further to your recent application to sub-let your tenancy, we have assessed your application and unfortunately it has been decided to refuse your application for the following reason(s):

Please return the form that I have enclosed should you wish to appeal against this decision. I have enclosed details of the appeals procedure as well as an envelope for you to use.

(enclose section 6 of the policy for information)

Yours sincerely,

Housing Officer

Operational Document 5: Appeal Application Form

Date

Name

Address

I/We want to appeal against the decision to refuse my sub-let application for the following reasons:

Please advise me of the date of the appeal.

Yours sincerely,

Operational Document 6: Notification Letter of Stage 1

Date

Name

Address

Dear (Name of applicant),

Re: Appeal Process

I have received your confirmation that you want to appeal against our decision to refuse you consent to sub-let your tenancy application. I would like to inform you that our appeals system involves two stages, they are as follows:

Firstly, you are invited to meet with me to discuss the reasons for your appeal on XXXXXX at XXXXXX

As a result of this meeting I will assess whether the organisation was correct to refuse you consent to sub-let your tenancy in accordance with our policy and inform you of the decision in writing within 2 working days.

Secondly if you are not satisfied with the outcome of this meeting you may request that your case be referred to our Management Committee, who will assess your reasons for appeal at a convened meeting in the future.

Please note that you may bring representatives along to either appeal meeting.