Common law is law derived from legal principles from institutional writers, such as Stair and Erskine, and case law, which is made up of judicial precedents laid down by judges in decisions made over the centuries. Where there is ambiguity in a contract such as a tenancy agreement, common law can be used to fill the vacum. It is a common misconception that, if certain common law rights are not mentioned in a written contract, they do not apply. This is not the case. Common law principles are implied even where they are not expressly stipulated. Therefore, it is important for advisers to be aware of the common law in order to make their clients fully aware of all their legal rights.
Although not common in Scotland, the circumstances in which common law tenancies may arise are many and varied. Such tenants usually have a lesser degree of security of tenure. Advisers should therefore check carefully that the tenancy is not in fact regulated by one of the following:
The statutory provisions that govern different types of tenancy will detail tenancies that are specifically excluded from their regime. For example, where there is a resident landlord, the tenancy cannot be an assured tenancy. [ 1 ] Many of these tenancies, if an alternative statute does not cover them, will be common law tenancies.
Examples of common law tenancies include:
It is important to investigate whether the tenancy meets the exclusion criteria fully. Where there is any doubt further clarification should be sought. An example of a tenancy requiring closer inspection would be where a tenant's landlord lives in the same house as her/him, but in fact only stayed at the property a couple of nights per month. Such a case merits further investigation as it could be argued that the landlord did not occupy the property as her/his 'only or principal home' and therefore failed to meet the resident landlord criteria as set out in the Housing (Scotland) Act 1988. [ 13 ] It may therefore be that the tenant would be a private residential tenant.
Note that it is possible for a tenant to sublet part of her/his property, and so become a resident landlord. Resident landlords do not have to be owner-occupiers. For more information, see the section on subletting.
A tenancy with the Crown that began on or after 1 December 2017 like to be a private residential tenancy, not a common law tenancy. The Private Housing (Tenancies) (Scotland) Act 2016 does not exclude the Crown from issuing a private residential tenancy. An Act of the Scottish Parliament whose Bill received Royal Assent on or after 4 June 2010 is presumed to apply to the Crown unless explicitly stated otherwise. [ 14 ]
Last updated: 26 September 2023