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Appeal against private residential tenancy dismissed

Thursday 17 October 2019

A tenant in Scotland who claimed that she and her landlords were subject to a private residential tenancy (PRT) in a house of multiple occupancy has had her appeal dismissed.

The appellant was seeking remedies under the Private Housing (Tenancies) (Scotland) Act 2016, but the Upper Tribunal for Scotland upheld a decision by the First-tier Tribunal for Scotland (Housing and Property Chamber) that there was no PRT agreement between the parties.

From 1 December 2017 the private rented sector in Scotland changed. Landlords are no-longer able to create Short Assured Tenancies (SATs), instead the new default residential tenancy will be the PRT.

What’s different about a PRT?

Experienced landlords will find there is a lot that is familiar about the new PRT. On a day to day basis many of the obligations and responsibilities of landlords and tenants remain unchanged. However, there are some distinct and very important differences.

The key features of the tenancy are:

  1. Tenancies have no end date
  2. Statutory terms are now mandatory
  3. There is a no ‘no-fault’ possession procedure
  4. Termination of a tenancy can only be effected in accordance with specific provisions made by the Private Housing (Tenancies) (Scotland) Act 2016.

Sheriff Nigel Ross heard that the appellant Kate Affleck moved into a flat in Edinburgh owned by the respondents Chris Bronsdon and Sarah Bronsdon on 1 January 2018. 

She entered into email correspondence with the respondents and was sent various details, such as a tenant’s handbook and information about the tenancy deposit scheme. 

The emails included a “New Tenant Registration Form”, which gave the respondents’ bank details and sort code, gave a date of transfer of the first day of each month, and stated a rent amount of £350 per month, but no tenancy agreement was ever provided despite the appellant asking for one.

Nevertheless, the appellant duly resided in the flat, where she had replaced an outgoing tenant and was one of four residents, for several months, paying monthly rental, without incident or dispute.

However, in August 2018, a dispute arose when one of the existing tenants moved out and another person moved in and asked for a tenancy agreement.

The respondents belatedly supplied a draft tenancy agreement for the appellant to sign, but it became apparent that the respondents and the appellant had quite a different idea of what arrangements existed.

The respondents claimed that the appellant was jointly and severally liable for the entire rent of the flat, but the appellant baulked at that suggestion, which had never previously featured in any correspondence between the parties.

Five separate draft tenancy agreements were sent to the appellant, four of which sought to impose joint and several liability.

The appellant signed none of them, as they all represented one-sided attempts to increase her exposure to liability, and only the fifth draft attempted to identify what part of the flat the appellant would occupy.

The appellant lodged an application with the Housing and Property Chamber, arguing that there was a PRT in place between the parties, but the tribunal found that the parties had not agreed the rent, or who was the tenant, or the subjects.

The appellant challenged the tribunal’s findings, but the Upper Tribunal for Scotland held that while the tribunal’s legal analysis was “flawed”, it reached the “correct” conclusion, namely that there was no PRT concluded between the appellant and respondents.

Propertymark resources

ARLA Propertymark members in Scotland can login to the members area on the ARLA Propertymark website to access a suite of benefits.

Fact sheets include:

  • Private Landlord Registration
  • Universal Credit and Private Rented Housing
  • Code of Practice – Ending the Tenancy

Tenant fees Toolkit includes:

  • Ten different fact sheets
  • Ten practical tips
  • Tenant guide
  • Case study from Scotland