The New Lease

The new Scottish Private Rental Tenancy agreement (SPRT) has been in force since 1st December 2017.  This means that all new tenancy agreements in Scotland since that date must use the new SPRT according to the Private Housing (Tenancies) (Scotland) Act 2016 or using the model provided by the Scottish Government.   Existing tenancies can run on the old Short Assured Tenancy lease indefinitely, however if either party wish to draw up a new lease, it must be the new SPRT.

The new Scottish Government Model Private Residential Tenancy Agreement is such a huge document that at first sight it is quite difficult to make sense of.  The model agreement itself runs to some 30 pages, and that is before you get to the mandatory Easy-Read (!) notes – another 49 pages.  For a more decipherable view, you can see our sample lease and easy-read notes.  However it is not all bad – the spirit of the lease is probably an improvement, offering a bit more flexibility for both sides and slightly better protection for the tenant; and in theory it is easier to execute and terminate, without the need for additional agreements (AT5 etc) or long court delays if things go wrong.

The Private Housing (Tenancies) (Scotland) Act 2016 will deliver improved security of tenure for tenants, including students in smaller purpose built and mainstream private rented accommodation, and also the power for local authorities to designate rent pressure zones within their jurisdiction. There will also be streamlined procedures for starting and ending a tenancy and a model agreement for landlords and tenants.

The Act contains transitional provisions to deal with the move from assured and short assured tenancies to PRTs. An existing tenancy which is extended by agreement between the landlord and the tenant – for example, a short assured tenancy which runs for an initial six months and is then rolled over by agreement between the parties on a six monthly basis – will continue to be effective as a short assured tenancy until it finally ends, or until the landlord and tenant decide that, with effect from a date to be agreed between them, the tenancy is to become a PRT. If a new tenancy is entered into, however, then that new tenancy will be a PRT.

Key features of The Act include:

improved security of tenure for tenants, including (some) students

powers for local authorities to impose rent caps in designated areas

simplified procedures for starting and ending a tenancy

a model tenancy agreement containing compulsory and other common clauses.

The SPRT will become the standard tenancy agreement between residential landlords and tenants and will replace the most common types of residential tenancies in Scotland – the Short Assured Tenancy and the Assured Tenancy. The main points to note in the Act are as follows:

There will be no minimum period of let and no pre-tenancy notices will be needed.

There will be a model tenancy agreement which may be used by landlords and tenants. Some of the clauses will be compulsory including, initially, provision for receipts for cash payment of rent, notification of adults other than the tenant occupying the property, a prohibition on sub-letting without consent and access for repairs.

A number of tenancy agreements have been excluded from the effects of the Act including agricultural tenancies of more than two acres, social housing tenancies and holiday lets.

Purpose built student accommodation will be exempt but only if the planning permission for the accommodation stipulates that it has to be used predominantly for housing students and the provider of the accommodation has at least 30 bedrooms in one building or as part of a complex again predominantly used to house students. All other student tenancies in smaller purpose built and mainstream private rented accommodation will fall within the new regime. Landlords subject to the new regime will be unable to end the student tenancies at the end of the 10 month academic term time as many do at the moment.

Tenancies will continue indefinitely unless the tenant wants to leave or the landlord can on one of the prescribed grounds for repossession. The grounds for repossession include the landlord or lender looking to sell the home or extensively refurbish it or a breach of the tenancy agreement by the tenant or change in the tenant’s status: the ‘no fault’ ground for termination will be removed.

Only one notice to leave will be needed to end the tenancy. Tenants must give four weeks’ notice to leave no matter how long the tenancy lasted. When a landlord may use one of the grounds for repossession, the notice periods are as follows:
if the tenancy lasted for six months or more, usually 12 weeks’ notice;
if the tenancy lasted for less than six months, four weeks’ notice; and,
regardless of the length of the tenancy, four weeks’ notice where the tenant:
-is not occupying the property as their home; or
-has failed to pay three consecutive months’ rent in full or is in breach of the tenancy agreement; or

-has behaved antisocially or committed a relevant criminal offence or associates with a person in the let property who has a relevant conviction or engaged in anti-social behaviour.
Rents may be reviewed once a year; the landlord must give the tenant at least three months’ notice of the increased rent. Tenants can challenge the proposed rent increase by seeking an order determining the rent from a rent officer. The rent officer must determine the open market rent which is ‘fairly attributable’; appeals can be made against such orders to the First Tier Tribunal.

Local authorities can apply to the Scottish Ministers to designate areas as rent pressure zones to regulate existing but not initial rents. If the local authority is successful, the rent pressure zone can be put in place for a maximum of five years. Landlords within the area affected will be able to raise rents by at least a minimum of CPI + 1%.

If certain conditions are met, partners, family members aged 16 and over and resident carers may succeed to a private residential tenancy on the death of the tenant.

The Act came into force in December 2017. From that point, existing assured and short assured tenancies will continue on the same terms and conditions. The parties to any such tenancy could agree to convert it to a private residential tenancy but, as yet, the legislation does not require them to do so. If, however, an existing tenancy is inherited by a successor (under existing succession rules), it will become a private residential tenancy and become subject to the new legislation.

[tbc]

 

Skipper agis a skipper

What, you may wonder, is the humble letting agent thinking of, swanning off on a sailing holiday in the middle of March?  Well, for a start, it was not a holiday: it was a course; and secondly, it was not Tenerife: it was Largs, just a few nautical miles from Holy Loch, which is now officially the wettest location in Scotland – and that is going something – (but more of Largs later).

A  friend of Jo’s did the same course this week, but in Tenerife.  But why risk the accusation of enjoying a fabulous sailing week off the coast of Africa when one can suffer in frozen rain on the Clyde?  (The sea was actually frozen in Holy Loch one morning).

To Infinity and Beyond!

The Day Skipper ticket, which the candidate hopes to receive after the five-day course, enables one to hire a boat on one’s own and/or to take one’s family on a sailing holiday on the Clyde, or in the Greek islands, or Tenerife.   I agreed to go along on this arduous training ordeal with Captn Jono Stokes RN (Rtd.)  aka Buzz Lightyear,  who insisted on Largs despite my suggestions.

[tbc]

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These Notes can help you understand your tenancy agreement if you have a private residential tenancy. They will also help you to know about your rights, and about the things you should be doing or not doing during your tenancy. These Notes also explain what to do if your landlord interferes with your rights, or if there is a problem between you and your landlord about your tenancy.

It’s the law that your landlord must give you a written tenancy agreement. The Scottish Government has produced a model tenancy agreement, which landlords can use for a private residential tenancy. This is called the ‘Model Private Residential Tenancy Agreement’. Landlords do not have to use this tenancy agreement if they do not want to. They can use a different tenancy agreement as long as it sets out all of the statutory terms.

Your landlord is also required to give you a copy of these Notes as your landlord has used the Model Private Residential Tenancy Agreement. These Notes explain all of the different parts of your tenancy agreement. Each part of the Model Private Residential Tenancy Agreement is numbered, and you will be able to look for the same numbers in these Notes to find information about each part.

All the items on your Tenancy Agreement are mandatory by law for you or your landlord to do, or not do. The relevant laws are listed at the end of these Notes. These Notes will help you understand these clauses.

The Scottish Government has given your landlord suggested wording for these clauses, which your landlord can use if they want to. If your landlord has used the suggested text, these Notes will help you to understand this text. If your landlord has used their own wording for a clause, or chosen not to include it at all, these Notes will not give information about that clause. If you need more information about any clauses which are not in these Notes, you may want to discuss them with your landlord, or contact the advice groups listed at the end of these Notes.

If you have a new tenancy, your landlord must give you your tenancy agreement and a copy of these Notes before the end of the day on which the tenancy starts.

If you have a different type of tenancy which is changing into a private residential tenancy, your landlord has 28 days after the day when the tenancy becomes a private residential tenancy to give you your new tenancy terms and a copy of these Notes.

If your landlord does not give you written terms of the tenancy or these Notes when they are supposed to, you can apply to the First-Tier Tribunal for Scotland Housing and Property Chamber (“the Tribunal”). The Tribunal may then give you a written tenancy and/or order your landlord to pay you up to three months’ rent.

You must give your landlord 28 days’ notice if you are going to apply to the Tribunal for this reason, and you must apply using the ‘Tenant’s notification to a landlord of a referral to the First-tier Tribunal for failure to supply in writing all tenancy terms and/or any other specified information’. There are guidance notes available to help you to fill in this form if needed.

In these Easy Read Notes:

The word “Agreement” means the tenancy agreement for the property which is being leased; and
The “Tribunal” is the First-Tier Tribunal for Scotland Housing and Property Chamber, which deals with disputes for tenancies of homes. The process should be easy and there is no cost to apply to the tribunal. You can access the form here:
https://www.housingandpropertychamber.scot/sites/default/files/hpc/REPAIRS%20APPLICATION%20FORM%20CHAMBER.pdf
The Form has guidance notes to help. You can also get help from the advice groups listed at the end of these Notes.
The landlord might appoint an agent to manage the Agreement and if they do, then when these Notes refer to the landlord, in practice that might instead be a reference to the landlord’s agent who will be acting on behalf of the landlord.

1. Tenant

If there is more than one person named on the Agreement as the Tenant the tenancy will be a joint tenancy. This means that each person is responsible on their own individually – as well as equally along with all of the others – for all of the payments and other things the tenant is required to do under the tenancy. For example, if any of the tenants in a joint tenancy fell into rent arrears, the landlord could ask one of the other named tenants to pay the money owed.
That person must pay the landlord the full sum that is owed and then try to get the other people who are also joint tenants to repay them their share.
The addresses the tenant(s) provides will usually be their current addresses and not the property that is being rented and that they are going to move into under the Agreement.
The Agreement could include details of tenant email addresses and telephone numbers.
If the Landlord and Tenant agree that formal written notices will be given by email instead of by letter (see Note 4 – Communication), then email addresses must be provided. If the Agreement does not allow notices to be given by email then it is not essential for email addresses to be given.
The Agreement does not say that any formal notice or other communication can be done by telephone, so it is not essential for telephone numbers to be given. But it might be useful to have telephone numbers available in an emergency or to speed up communications between the landlord and tenant.
2. Letting Agent
3. The landlord might use an agent to manage the tenancy. The Agreement will then have details of how to contact the agent.
4. From 2 October 2018, all businesses who carry out “letting agency work” as defined by section 61 of the Housing (Scotland) Act 2014 must have applied to join a register of letting agents. Where this applies, the registration number should be provided in the Agreement. Not all agents will be carrying out letting agency work as defined by this Act so not all agents will have a registration number. All agents will still need to be assessed by the local authority under the landlord registration scheme. The idea of this scheme is to make sure that a private landlord and their agents are “fit and proper persons” to be involved in letting properties. Tenants can check if their landlord and/or their agent have registered by looking them up at https://www.landlordregistrationscotland.gov.uk/
5. The Agreement says which services the agent will be doing for the landlord. The landlord might use an agent for some things, for example sorting out repairs or cleaning of common areas.
6. The Agreement will state the matters the tenant should contact the agent about, instead of the landlord. For example, the landlord might want the tenant to contact the agent (instead of the landlord) if there is problem with water coming into the property or if something (like a cooker or fridge or boiler) has broken down.
7. Where the agent is a company, the Agreement should say which person is the first person that the tenant should try to contact.
8. Landlord
9. The names and addresses of the landlord(s) should be shown on your Agreement.
10. Landlord email addresses and telephone numbers might also be given.
If the Landlord and Tenant agree that formal written notices will be given by email instead of by letter (see Note 4 – Communication) then email addresses must be shown here. If the Agreement does not allow notices to be given by email then email addresses don’t need to be given.
The Agreement does not say that any formal notice or other type of contact can be made by phone, so phone numbers don’t need to be given. However, it might be useful to have phone numbers in an emergency or to speed up contact between the landlord and tenant.
11. The registration number of the landlord should be given. This is the landlord’s number under the landlord registration scheme run by local councils. The idea of this scheme is to make sure that a private landlord is a “fit and proper person” before that landlord can rent out property. Landlords must register and tenants can check if their landlord has registered by looking them up at https://www.landlordregistrationscotland.gov.uk/
12. Communication
13. You can sign this agreement “electronically” by typing your name – instead of signing a paper copy. It will still be a legal document that the landlord and tenant must comply with by law.
14. The Agreement should say whether notices and letters must be sent by paper letter form only or whether emails will be used instead.
15. The tenant does not need to agree to receive notices under the Agreement by email. If the tenant agrees to receive notices by email this could include important messages. For example telling the tenant that the rent is to go up or that the Tenancy is being brought to an end. You should think about whether email would be the right way to receive important information. The landlord and the tenant must tell each other about changes to their email addresses.
16. If you don’t inform your landlord about a change of email address you might miss an important email such as a Notice to Leave. That would mean that the Notice to Leave sent to the old email address would still be accepted by the Tribunal as having been properly sent even though the notice was not actually received by the tenant. In this case you can still be evicted.
17. When the notice is sent by email or recorded delivery post, then an extra 2 days should be added to the notice period to allow time for delivery. This is required by law, even if it is not stated in the tenancy agreement. This applies both when a tenant is sending a notice to their landlord, or when a landlord is sending a notice to their tenant.
18. For example, if one months’ notice needs to be given before 31 December 2017, then if the notice is being given by post or by email, it should be posted or emailed no later than 28 November 2017. If the notice is being delivered by hand, it should be delivered no later than 30 November 2017.
19. Details of the property
20. The Agreement will contain the address and other details about the property – for example whether the property is a flat or a bungalow.
21. The Agreement should make it clear:
what areas and facilities are included in the property and if any of those are to be shared; and
what (if any) areas are not included.
22. This information is helpful if the property is part of a larger building where it might not be obvious which parts of the larger building are included in the property being let.
23. The Agreement may list shared areas, such as a shared garden or communal entrance area.
24. The Agreement may list parts not included in the property being let, such as, for example, a part of the garden or a parking space which is only to be used by another tenant of the building.
25. The Agreement should say whether or not the property is to have any furniture provided by the landlord. If there is furniture, it will probably be listed in an Inventory and Record of Condition. This is a list of all the items included so that the landlord and tenant can agree what was there at the start of the Agreement, and the condition of these things at the start of the Agreement.
26. The Agreement should say whether the property is in a Rent Pressure Zone. If it is, then the landlord will only be allowed to increase the rent by a certain amount each year. More information on this can be found on the Scottish Government’s website: https://beta.gov.scot/publications/private-residential-tenancies-tenants-guide/#rent-and-other-charges
27. The Agreement should say whether the property is a House in Multiple Occupation (HMO). A home is an HMO:
if it is occupied by three or more adults (aged 16 or over)
if they are from three or more families
if the home is their only or main residence
it is either a house, premises or a group of premises owned by the same person with shared basic amenities (a toilet, personal washing facilities, and facilities for the preparation or provision of cooked food) (as defined in section 125 of the Housing (Scotland) Act 2006)
28. If the property is an HMO, the Agreement should give the 24 hour contact number and the date on which the licence for the HMO will finish.
29. HMO landlords must have a licence from the local authority to make sure that the property is managed properly and meets legal safety standards. Because the landlord needs to get a licence if the property is an HMO, it is important that the tenant tells the landlord if extra people move into the property (see Note 13 – Notification about other Residents).
30. Start date of the Tenancy
31. The Agreement must state the date when the tenancy begins, which will be when the tenant can move into the property.
32. Occupation & Use of the property
33. The tenant is to live at the property as the tenant’s home.
34. The tenant must get the landlord’s written consent, in advance, if the tenant wants to use the property for any work or business, in addition to living in the property.
35. There are many reasons why a landlord might not agree to allow any work or business use of the property, including for example:
the deeds which set out the landlord’s ownership of the property do not allow that use; or
the planning permission (from the local council) for use of the property does not allow work or business use; or
the landlord thinks that the actual work or business which the tenant wants to do at the property would be likely to disturb or annoy neighbours; or
use of the property for any work or business might make the landlord’s insurance for the property more expensive or even invalid; or
the terms of the landlord’s mortgage policy do not allow the property to be used for work or business.
36. Rent
37. The Agreement should specify the amount of rent, and how often that amount is to be paid. The payment times might be weekly, every 2 weeks, every 4 weeks, monthly, 4 times a year or once every 6 months.
38. The rent payments could be due to be paid in advance (at the beginning of each such amount of time) or in arrears (after that amount of time has passed). The maximum amount of rent which a landlord can ask their tenant to pay in advance is 6 months’ rent.
39. The Agreement should say:
the date on which the first payment is to be made and how long that amount of money will cover; and
on which date rent will next need to be paid.
40. The Agreement lets the landlord say how the rent should be paid. For example, the landlord might want the rent payments to be paid by bank transfer or by cheque. It is possible for the tenant to pay using another way, if that is fair. For instance, it might not be considered fair to pay the rent by a method which would result in a high bank charge to the landlord, such as payments made using some credit cards.
41. The Agreement should also state if any services are to be included in the rent. This is to make it clear that the tenant would not have to pay extra for those services. For example, the rent might include the cost of lighting a shared hall or stair cleaning costs. Any services which are paid monthly should be included as part of the rent. For example, if a landlord pays for stair and window cleaning and charges the tenant monthly for this cleaning that would be included. The services which are included in the rent should be listed in the Agreement along with the amount for each service.
42. Where there are one-off payments throughout a tenancy, such as where the landlord agrees to carry out a repair for the tenant for a fee, then this will not form part of the rent.
43. The landlord is not allowed to charge a tenant for other services – such as the cost of preparing a lease, ‘key money’, administration charges, or for the cost of preparing an inventory etc. These charges are known as ‘premiums’. If the landlord charges a premium, the tenant should write and ask for a refund. If the landlord refuses to provide a refund, then a claim could be made through the Tribunal. The tenant could also contact the local council’s landlord registration team, or, if the landlord holds a HMO licence, the tenant could contact the local council’s licensing team to help with this.
44. Rents of tenants with a private residential tenancy in a rent pressure zone can only rise, each year, by an amount set by Scottish Ministers which is linked to inflation (rises in the cost of living generally). More detailed information on this is available at https://beta.gov.scot/publications/private-residential-tenancies-tenants-guide/#rent-and-other-charges
45. A landlord in a Rent Pressure Zone can also apply to the Rent Officer to allow a further increase to your rent because the landlord has done work to improve the property. This increase in rent would be in addition to any inflation related increase in the rent.

46. Rent Receipts
47. If the tenant pays rent in cash then the landlord must give the tenant a written receipt.
48. That receipt must show:
the amount paid,
the date on which that amount was paid; and
whether the rent is now paid up to date – and, if it is not, how much is still to be paid.
49. Rent Increases

50. The rent can only go up once a year. Before the rent can go up, the tenant must be given an official notice called a rent-increase notice. This notice might be sent by email if the Agreement allows for this. Any rent-increase notice must be given to the tenant by the landlord at least 3 months before the date that the rent is to go up.
51. If the tenant receives a rent-increase notice, and the tenant thinks that the new rent would be higher than is being charged at that time for similar properties, then the tenant can ask a Rent Officer to decide whether the increase is fair.
52. “Fair” here means an amount similar to the rent which is, at that time, being charged for similar properties on new lettings. It does not mean how much the tenant can afford to pay.
53. Tenants must follow certain steps to ask the Rent Officer to make this decision and there is a 21 day time limit for this to be done. If these steps are not followed by the tenant within the 21 day time limit then the tenant will lose their right to challenge the rent increase – and the rent will be increased to the amount wanted by the landlord.
54. These steps are as follows:
The tenant must return Part 3 of the rent-increase notice to the landlord – to tell the landlord that the tenant intends to ask the Rent Officer to decide whether the rent increase is fair;
The tenant then fills in a form called the Tenant’s Rent Increase Referral to a Rent Officer under section 24 (1) of the Private Housing (Tenancies) (Scotland) Act 2016 to be used for this purpose, a copy of which can be accessed on the Scottish Government website, or through Rent Service Scotland –see Useful Contacts and Links at the end of these Notes; and
The tenant then sends the finished form to the Rent Officer.
55. All of this must be done within 21 days after the tenant receives the rent-increase notice. If this is not done then the rent increase will go ahead.
56. If the tenant accepts the rent increase, they should return Part 3 of rent-increase notice to the landlord to tell them that.
57. Part 3 of the rent-increase notice can also be returned to the landlord by the tenant to say if the tenant has not been given long enough notice of a rent increase – so if less than 3 months’ notice was given. If the landlord gives less than the 3 months’ notice, then the tenant will not need to pay the increased rent until 3 months have passed. So the landlord cannot try and increase the rent on one month’s notice for example.
58. If the property is in a Rent Pressure Zone, the tenant cannot go to a Rent Officer about the rent increase. That is because the Scottish Ministers have already limited the amount by which the rent can be increased. (See Note 8 – Rent). As the landlord cannot increase the rent higher than the cap, the tenant doesn’t need to pay any rent above the cap. The tenant has a number of options:-
only pay the rent up to the limit of the cap as the tenant is at no risk of eviction;
contact one of the advice groups listed at the end of these Notes; or
apply to the Tribunal to draw up the terms of the tenancy (as the terms of tenancy have changed as the rent has increased).
59.
60. You should tell your landlord what you intend to do. In any event, if you apply to the Tribunal, your landlord must be given 28 days’ notice.
61. Deposit

62. When a tenant moves into a rented home, most landlords will ask for a deposit. This is a sum of money which acts as a guarantee against various things. These are things like damage that the tenant may do to the property, costs for any cleaning which may be needed, bills (for example electricity) that are left unpaid, as well as any unpaid rent.