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New private residential tenancies for Scotland from tomorrow

Thursday 30 November 2017

As of 1 December 2017, under the Private Housing (Tenancies) (Scotland) Act 2016, a new Private Residential Tenancy (PRT) will replace the previous assured and short assured tenancy agreements for all new tenancies granted in Scotland.

The new type of tenancy is an open-ended tenancy designed to minimise disruption to tenants' lives, so that they can feel safe and secure in their home without fear of eviction at short notice, just because the tenancy reaches the end. The 'no-fault' eviction option available under the old Short Assured Tenancy will no longer be available. The Scottish Government say that the new type of tenancy also designed to give more certainty to landlords and agents through the 18 distinct grounds for eviction.

From 1 December, any existing short assured or assured tenancy will continue until either the landlord or the tenant brings it to an end by serving notice to quit the property, or both agree that the lease should be a PRT.  

The new contract

Tenants must be provided with written terms of any new contract before the end of the day on which the tenancy starts (or no later than 28 days after an existing tenancy becomes a PRT). This can be a paper copy, or an electronic copy if the tenant agrees to this.

To make things easier for agents and landlords, the Scottish Government have produced a Model Tenancy Agreement (MTA) form which comprises mandatory clauses in bold, and 'discretionary terms' which you can use to tailor the agreement. You can also create a Model Tenancy Agreement online

If you use the MTA, you must also provide the tenants with a copy of the Easy Read Notes for the Scottish Government Private Residential Tenancy Agreement.

You can still create your own contract if you wish, but you must include nine mandatory tenancy terms and you need to make sure you fully understand the Private Housing (Tenancies) (Scotland) Act 2016 and any supporting secondary legislation and other legislation. It's therefore advisable to use a solicitor. 

N.B If you are not using the MTA, you need to be aware that clause 2 relating to rent increases, clauses 6, 7 & 8 relating to access for repairs, and clause 9 relating to termination in The Private Residential Tenancies (Statutory Terms) (Scotland) Regulation 2017 differ slightly from the equivalent sections in the Model Tenancy Agreement and this must be reflected in your agreement.

If you create a contract yourself, you will also need to provide the tenant/s with the Private Residential Tenancy Statutory Terms Supporting Notes, not the Easy Read Notes. 

When do I need to create a PRT?

Any new residential tenancy agreement that commences on or after 1 December must be on a PRT if it is let to an individual (or joint tenants) who are occupying as their only or main home and it is not one of the excluded properties (found in schedule 1 of the Private Housing (Tenancies) (Scotland) Act 2016). Excluded properties include shop premises, licensed premises, agricultural holdings, holiday let or resident landlord sistuations.

Can agents sign the PRT on behalf of the Landlord?

Yes this is acceptable.

Can an existing Short Assured Tenancy (SAT) continue on an month to month basis after 1 December?

Yes.  Saving provision were introduced which means a SAT will remain after 1 December and if they continue on a monthly rolling basis they will remain SAT’s. 

Do I still need to issue a tenant information pack?

No. However the tenant still needs to receive information about the property regarding the safety standards such as the EICR and EPC.

Bringing the new type of tenancy to an end

Tenants can give bring the tenancy to an end by giving the landlord at least 28 days notice, taken from the time the landlord receives the notice. 

Landlords or agents acting on behalf of their landlord will only be able to bring a tenancy to an end by serving a Notice to Leave, relying upon one of 18 grounds for eviction; eight of which are mandatory grounds, eight are discretionary, and two that could be either.

  • Mandatory grounds - where the First-Tier Tribunal (Housing and Property Chamber) agrees that the ground exists. 
    Examples include: The landlord intends to sell the property, the landlords mortgage provider wants to repossess the property, or the tenant has a relevant criminal conviction, or the property has been abandoned by the tenant.   

  • Discretionary grounds - The Tribunal still has to decide whether it's reasonable to issue an eviction order, even if they deem that the ground is met.
    Examples include: Tenant has breached a term of the tenancy agreement, tenant has engaged in anti-social behaviour or the landlord's HMO licence has been revoked. 

  • Grounds which could be either - depending on the circumstances of the case.
    An example is where the tenant has been in rent arrears for three consecutive months. If the tenant owes at least a month's rent when the tribunal considers the case on its merits, then the ground is mandatory. If they owe less than a month's rent one the first day of the tribunal, the ground is discretionary.  

N.B - The notice period for the Notice To Leave will be 28 days for all grounds if the tenant has been in the property for less than 6 months or if one of the conduct grounds applies (for example rent arrears). Otherwise it will be 84 days if your tenant has lived in the property for longer than six months and you are not relying on one of the conduct grounds. 

What happens if the tenant doesn't move out when the notice period ends?

Landlords or their agent can then apply for an eviction order via the First-tier tribunal if the tenant does not move out as soon as the notice period ends. 

Increasing rents and additional charges

Landlords won't be able to increase rents for properties they own more than once in any given year, and tenants must be given a least three months notice of any planned increase, using the 'landlords rent-increase notice to tenant(s)' form.  

Tenants will also have the right to have the rent assessed by a rent officer if they feel that the rent increase is unfair. They will need apply within 21 days of notification by the landlord, and must tell their landlord by completing Part 3 of the 'landlord's rent-increase notice to tenants(s)'. However, it should be made clear to tenants that rent officers also have the power to increase the rent if they feel it should be higher.  

Besides the rent itself, the only additional charge you can make to a tenant is security deposit of no more than two month's rent. 

The Act and accompanying Government documentation is considerable so the above is just an overview of the key points. You can find more information on the Government website and we'll also be producing a fact sheet for members, which will be released soon. ARLA Propertymark members can also contact the Scottish Legal Helpline on 0845 862 1390. 

Still got questions?

Then make sure you attend one of our upcoming Regional Meetings near you.