Tenancies in Scotland

Scotland has different housing law

Housing law in Scotland is different for landlords from that in England and Wales. The primary legislation contained in the Act of Parliament differ.  Having said that in many ways they are similar.  The law relating to the private rental sector changed from the 1st December introducing a new tenancy in Scotland called a private residential tenancy.

Prior to the changes there were 4 main types of private sector tenancy in Scotland:

• protected tenancy
• statutory tenancy
• assured tenancy
• short assured tenancy

Protected tenancy in Scotland

These tenancies must have begun before 2 January 1989 and offer protected tenancy until the death of the tenant or eligible successor.  These protected tenancies together with a statutory tenancy are similar to the tenancies in force in England prior to the introduction of assured tenancies.  They offer a fair rent and high levels of security of tenure for a tenant.

Assured tenancy in Scotland

These tenancies were very similar to the Assured Tenancies introduced in England and Wales.  The legislation that established these tenancies was the Housing (Scotland) Act 1988 and became operational on 2nd January 1989.  As in the case of it’s English counterpart it heralded an era of market rents and a reduced degree of security of tenure.  The following cannot be Assured Tenancies:

• Tenancy where no rent is paid or where the rent is under £6 per week
• Tenancy of shops or licensed premises
• Tenancy of agricultural land or agricultural holdings
• Lettings to students
• Tenancy where the landlord is resident
• Crown tenancy
• Public-sector tenancy
• Shared-ownership agreements
• Protected tenancy, housing association tenancy and secure tenancy
• Temporary accommodation for the homeless

Unfortunately our free tenancy agreement only covers England and Wales.

Tenancy Agreements in Scotland

A landlord must draw up a written tenancy agreement  (or lease) for an assured tenant stating the terms and providing the tenant with a free copy.  If the landlord fails to do so, the sheriff may draw up a lease or alter the tenancy agreement document if it is inaccurate.

The following issues were dealt with in the same way in Scotland as in England and Wales.

• Permission to grant a tenancy
• Payment of rent
• Interest on rental arrears
• Council tax
• Water charges
• Alterations
• Landlord insurance
• Children and pets
• Unfair terms in consumer contract regulations 1999
• Safety regulations
• Rental deposits
• Collecting the rent
• Property inventories

The following are different:

Use of house

The tenant is only entitled, at common law to use the house as a dwelling house.  Any other use is a breach of an implied term of the tenancy agreement.  This is different to the English version which requires a specific limitation to use in the tenancy agreement.

Irritancy clauses

It is important in the tenancy agreement for a landlord to specify the circumstances in which the agreement can be terminated by the landlord.  This is known as an irritancy clause.  The agreement should refer to the circumstances in which the court may grant possession of a house let under an assured tenancy as well as any other circumstances in which the landlord would wish to terminate the tenancy agreement (such as rent arrears, misuse of the house, etc)

Stamp duty

In Scotland the tenant cannot be charged for this.  Otherwise the position is the same for Scottish landlords as for England and Wales

Repairs of a rental property in Scotland

• The landlord’s responsibilities are as follows:
• The landlord must provide the house reasonably fit in all respects for human habitation
• The landlord must keep it that way throughout the tenancy
• Whenever the landlord becomes aware that repairs are needed, he must carry them out within a reasonable period
• The landlord must keep the house wind and water tight
• The landlord must keep in good repair the installations in the house for water, gas electricity, heating, hot water and sanitation
• The landlord must keep in repair the structure and the exterior of the house

The tenant is entitled to withhold rent (but not to spend it) where the landlord has failed in his repairing responsibilities.  Alternatively, if the landlord has failed to carry out the repairs after a reasonable period, the tenant can pay for the repairs and deduct the cost from the rent.  The landlord  cannot avoid his repairing obligations by anything which is contained in the written tenancy agreement.

Assignment and subletting of a rental property in Scotland

An assured tenant is not permitted to assign, sublet or part with possession of any part of the property let to him without the landlord’s consent.  The landlord can refuse permission without reasons or can grant permission with or without conditions.
If a landlord does permit a tenant to sublet part or all of the house, and the tenancy between the tenant and the landlord is subsequently ended (for whatever reason) the sub-tenant then becomes the tenant of the landlord.  That tenancy will be an assured tenancy only if the sub-tenancy was also an assured tenant.

Recommendations to Scottish landlords

Having discussed the various aspects of a tenancy agreement I’ve put together the following summary of the ‘dos and dont’s for landlords’:

1. A fixed term tenancy should always be for 6 months unless a very short term let is needed.  This offers security for landlords but gives landlords flexibility in terms of removing the tenant and increasing the rent.  Useful, particularly when initially landlords are not sure if they have a ‘goodun’.

2. A tenancy should always be monthly.  This keeps a landlord’s administration down and avoids the need for a rent book associated with a weekly let.

3. Landlords should avoid where possible room by room lets because of the likelihood of them having the responsibility to pay for council tax.  (landlords should always check out  liability with the Local Authority)

4. Landlords need ensure that where a tenant is not domiciled in the UK that they have a large deposit to cover the eventuality that if the tenant stops paying rent and then disappears back to their country of origin.  In which case, a landlords chance of getting the rent arrears back is practically zero.

5. Landlords should always opt for a ‘shorthold’ agreement.  There are no benefits for a landlord of using an Assured Tenancy (AT).

6. If this chapter has not answered all your questions, then you might be tempted to buy a book on the law of letting.  Before doing this consider obtaining a copy of the Government’s Guide on Assured Tenancy (AT) and Assured Shorthold Tenancy (AST’s).  The ODPM has produced a series of free publications aimed at tenants but which are also very useful for landlords.  They are obtainable from:  ODP Publications, PO Box No.236, Wetherby. LS23 7NB.  Telephone 08701226236. E-mail: odpm@twoten.press.net or downloadable from the website www.odpm.gov.uk

7. Check out the Scottish Rental Research.