Conveyancing Q & A June 2007
This article appeared in Homeseeker in June 2007.
Question 1:
Answer 1:
An ASBN is an anti social behaviour notice which can be served on you under Part 7 of the Anti Social Behaviour Etc. (Scotland) Act 2004.
Anti social behaviour can range from being a noisy neighbour to matters as serious as racism and bullying.
It is the landlord’s responsibility to ensure that tenants conduct themselves in a way that will not cause distress or nuisance to any other person in or in the vicinity of the let property.
It is good practice for a Tenancy Agreement to set out for tenants what is and is not acceptable behaviour.
Initially, I would suggest you contact the tenants and, provided your Tenancy Agreement does set out clear standards advising tenants on what is acceptable behaviour, enforce the terms of the Agreement.
If the tenants fail to comply, you can serve notice on them to quit the property on the basis they have breached the Agreement.
You can further seek an interdict to prevent them from behaving in an anti social manner.
If you fail to act, the Local Authority may serve you with an ASBN and in a worse case scenario if you still fail to take action a court may suspend the rent payable to you in terms of the tenancy. The tenancy would remain valid and so the tenants would remain in the property until the lease was terminated either on the grounds of anti social behaviour and breach of agreement or following the usual notice to quit being served at the end of the lease, however, no rent would be payable to you. In addition, it is a criminal offence to fail to comply with an ASBN and on summary conviction you would be liable for a fine not exceeding level 5 on the standard scale which is currently £5,000.
Question 2:
Answer 2:
Provided the flat complies with the basic HMO requirements of the Local Authority and provided the landlord is a suitable person to hold a licence then a licence will be granted. There are however completely different considerations when it comes to planning.
Planning permission will be required if there has been or is proposed to be a change of use which based on the circumstances of a case constitutes “development”. If the present use of the property is a lawful use, for example, if it has been used for that purpose for more than a period defined in the statute (currently 10 years) then such use will be immune from enforcement action.
Therefore, if you can show that your property has been used as a multiple occupancy for 10 years, then the Local Authority may agree that planning permission is not necessary. However, if you are unable to show this and the property was previously used as a family home but is now used for letting purposes and there is an increase in the number of occupants in the flat, then that constitutes development for the purposes of the Town and Country Planning (Scotland) Act 1997.
When considering a planning application for a property in multiple occupation, the Local Authority will take into account the parking in the area, the refuse storage area and the general amenity and the impact a multiple occupancy may have on that.
As a result of this, factors outwith your control, such as the number of multiple occupancies within your block or street may also be taken into account. If you do not apply for planning permission, however, you will be in breach of the 1997 Act and a notice may be served on you by the Local Authority requiring you to cease use of the property as a multiple occupancy.
Article compiled by Karen Lang
Posted by Sharon Clift on Jun 01, 2007
