Private residential tenancy statutory terms: supporting notes

Essential information

The following essential housing information has been included in here to help you understand your rights and responsibilities as a tenant:

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 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 on 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.
• 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.

Letting Agent

The landlord might use an agent to manage the tenancy. The Agreement will then have details of how to contact the agent.

All letting agents are required by law to follow a Letting Agent Code of Practice.

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. Those agents will still need to be assessed by the local authority under the landlord registration scheme.

The idea of these schemes is to make sure that private landlords and their agents are "fit and proper persons" to be involved in letting properties. Tenants can check if their agent has registered by looking them up on the Scottish Letting Agent Register and/or the Scottish Landlord Register.

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.

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.

Where the agent is a company, the Agreement should say which person is the first person that the tenant should try to contact.

Landlord

The names and addresses of the landlord(s) should be shown on your Agreement. 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 on 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.

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 you can check if your landlord has registered by looking them up on the Scottish Landlord Register.

Communication

The Agreement should say whether notices and letters must be sent by paper letter form only or whether emails will be used instead.

You can sign the 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.

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.

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. In the event that the email correspondence method is unavailable or unusable by either party, the Tribunal may take a view that recorded delivery would be acceptable. This is at the discretion of the Tribunal.

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.

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 (this would normally involve a Sheriff Officer if a landlord was giving a notice of removal - Paragraph 34.8 of the Act Of Sederunt (Sheriff Court Ordinary Cause Rules) 1993 No.1956 (S.223) refers), it should be delivered no later than 30 November 2017.

Details of the property

The Agreement will contain the address and other details about the property - for example whether the property is a flat or a bungalow.

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.

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.

The Agreement may list shared areas, such as a shared garden or communal entrance area.

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.

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.

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.

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)
• they are from three or more families
• 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)

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.

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 on Notification about other Residents).

Start date of the Tenancy

The Agreement must state the date when the tenancy begins, which will be when the tenant can move into the property.

Occupation & Use of the property

The tenant is to live at the property as the tenant's home.

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.

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.

Rent

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.

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.

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.

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.

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.

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.

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.

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 in the Scottish Government’s online guidance.

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.

Deposit

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, such as 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.

The total amount of the deposit cannot be more than 2 months' rent. If the tenant is charged more than two months' rent, then the tenant can contact Shelter Scotland or a Citizens Advice Bureau for advice about claiming back the extra amount. It is an offence to require payment of any premium (in addition to the rent and a refundable deposit of no more than two months’ rent) as a condition of the grant, renewal or continuance of a tenancy.

A deposit must be held by a tenancy deposit scheme until the end of the tenancy. This is to stop the landlord using a deposit as if it was their own money. Tenancy deposit schemes are run by independent companies which are approved by the Scottish Government. The landlord has to pay the deposit to one of the schemes within 30 working days from the start of the tenancy (working days are usually Monday to Friday - so 30 working days is usually 6 weeks). When a deposit is paid in instalments then each instalment must be lodged within 30 working days of that instalment being paid. There will be no charge to the tenant or landlord to pay the deposit into one of the schemes.

It is good practice for a landlord or letting agent to pay a deposit, or part deposit (when joint tenants pay their share of a deposit), to one of the approved tenancy deposit schemes as soon as possible after the start of the tenancy. This is very important as a landlord or letting agent has no authority to retain any deposit/part deposit at any time.

A landlord or letting agent is not permitted to charge any premiums. By paying any deposit received into a scheme promptly, a landlord/letting agent is clearly demonstrating that any deposit received is always being treated as a deposit and not as a premium.

Any retention of a deposit by a landlord or letting agent is a serious matter, as deductions from tenancy deposits can only be done by one of the approved tenancy deposit schemes in accordance with the Tenancy Deposit Regulations. The First Tier Tribunal (Housing and Property Chamber) will not look favourably at cases where the landlord or letting agent has deviated from paying the money into a tenancy deposit scheme. When a tenant has signed a tenancy and changes their mind a day or two before the tenancy is due to start, the deposit should be returned as any deduction from it would be equivalent to charging a premium.

Sometimes a landlord or letting agent will insert a discretionary (their own) clause in the private residential tenancy agreement to make clear about any reimbursement of expenses they will require if a tenant that has committed to a tenancy decides not to take up the tenancy shortly before it starts. Such reimbursement should not be deducted from the deposit. It is essential that a landlord or letting agent makes this clear from the outset in writing. A tenant should never be in any doubt about what they are signing up to and what obligations a landlord or letting agent has placed on them.

What happens when a deposit is lodged?

The tenant should receive a letter or email from the tenancy deposit scheme confirming that their deposit has been lodged. The letter will set out the amount of the deposit and explain how it will be repaid and how any disputes can be settled.

If the tenant does not receive a letter from an approved deposit scheme after 6 weeks, they should contact their landlord. If the landlord has not lodged their deposit, the tenant should raise a complaint with the Tribunal. If the landlord has not used one of the schemes, the Tribunal can order the landlord to pay up to 3 times the deposit to the tenant.

Within 30 working days after the start of the tenancy the landlord must give the tenant all of this information about the deposit:

• the amount of the deposit;
• the date that the landlord received the deposit and the date that the landlord paid the deposit into a scheme;
• the address of the property to which the deposit relates - so the property let to the tenant;
• a statement from the landlord confirming the landlord is registered or has applied to be registered with the local council;
• the name and contact details of the tenancy deposit scheme where the deposit was paid;
• and the terms on which the deposit is held - including (1) when the deposit is to be returned to the tenant and (2) the circumstances where the landlord can be paid some or all of the deposit at the end of the tenancy, instead of the deposit being paid back to the tenant.

Examples of money that the landlord can ask to be paid by the scheme (and not paid back to the tenant) are:

• unpaid rent
• other amounts not paid or the cost of any repairs needed if the tenant caused the damage
• to pay bills left unpaid by the tenant

If there are no issues like that at the end of the tenancy, then the landlord should ask the scheme to pay the full amount of the deposit back to the tenant.

At the end of the tenancy the landlord should ask the tenancy deposit scheme to release the deposit and the amounts payable to the tenant and the Landlord.

The deposit scheme will contact the tenant to check whether the tenant agrees with the landlord's figures.

Different things happen, depending on whether the tenant agrees with the landlord's figures or not:

• If the tenant agrees with the landlord's figures, then the scheme will pay those amounts to the landlord and tenant.
• If the tenant does not agree with the landlord's figures, then the tenant must contact the landlord. The landlord and the tenant need to try to agree what, if any, amount is to be deducted from the deposit and kept by the landlord. If the landlord and tenant cannot agree, the tenant can ask the Tenancy Deposit Scheme which holds their deposit to use their dispute resolution process. The dispute will be sent to an independent adjudicator who has the role of reaching a decision in a dispute. The adjudicator will be given any evidence (for example photographs or receipts) and will come to a decision about the amount (if any) to be given by the scheme to the landlord and the amount to be repaid to the tenant.

If the tenant does not respond within 30 days, then the landlord will be paid the amount that the landlord requested be deducted for rent, repairs and other costs - and the rest (if anything is left) will be repaid to the tenant. If the landlord has not, by the time that the tenancy ends, asked the scheme to release the deposit, then the tenant can apply to the deposit scheme for repayment. In that case, the deposit scheme will contact the landlord to ask whether the landlord agrees that the whole deposit should be repaid to the tenant or whether the landlord thinks that an amount should be taken off and paid to the landlord.

If the landlord does not agree that the whole deposit should be repaid to the tenant, then the landlord can try to agree the figures with the tenant. But if the landlord and tenant cannot agree the figures, then the decision is referred to an independent decision-maker.

Overcrowding

The tenant must not allow the property to become overcrowded. If the tenant does allow this to happen, then the landlord can evict the tenant.

What counts as overcrowding for a property depends on the number and size of the rooms, as well as the age, gender (male or female) and relationships of the people that live there.

There is a room standard and a space standard when working out if there is overcrowding. The Scottish Government's guidance to local authorities gives details of the standards at Annex A.

If too many people do live at a property, the local authority might do something to stop the overcrowding.

A home is an HMO:

• if it is occupied by three or more adults (aged 16 or over)
• they are from three or more families
• 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)

The local authority will tell the landlord how many people are allowed to live in any HMO property.

More advice on overcrowding is available from Shelter Scotland or the council.

Insurance

The landlord will pay the premiums if they insure the property and any items which belong to the landlord, for example any furniture on the inventory.

The tenant can choose whether or not to insure the things that the tenant brings into the property. Insuring the tenant's belongings is not the responsibility of the landlord.

The tenant must pay for the cost of any damage caused by the tenant (or by any visitors) to the property or fixtures and fittings, for example kitchen cupboards, fitted wardrobes and fitted kitchen appliances.

Any defect or breakdown caused by normal wear and tear does not need to be paid for by the tenant. Wear and tear is allowed, because if you use something in the normal way, then it will become worn out over time. The tenant should not have to pay to replace things which have just been worn out by being used in a normal way.

Absences

A long absence from the property may affect the landlord’s insurance costs. If the tenant is not going to be at the property for more than 2 weeks at a time, then the tenant must do three things:

• Before the property is left unoccupied, the tenant must tell the landlord that they won’t be there and for how long;
• Before leaving, the tenant must do anything reasonable that the landlord has asked the tenant to do to keep the property secure during the tenant's absence - this means to stop the property being broken into or lived in by anyone else; and
• Before leaving, the tenant must have checked the property to be sure that, during the tenant's absence, reasonable care will still be taken of the property, as set out in note below on Reasonable Care. For example, if the property is going to be empty during the winter time the tenant should make sure that (1) the heating is on timer, to stop the property getting damp inside and (2) the water is turned off, to prevent damage that might be caused by burst pipes.

Reasonable Care

The tenant must take reasonable care of the property and of any common areas that the tenant is allowed to use.

"Reasonable care" is the sort of care that a reasonable occupier would take to keep the property in good condition, to keep safety systems in working order and to limit the risk of any harm being done to other properties or to neighbours.

Such "reasonable care" under the Agreement includes, for example, the tenant taking all reasonable steps to:

• keep the property adequately ventilated (aired out) and heated;
• not bring any hazardous (dangerous) or combustible (easily catch fire) goods or material into the property. The tenant can keep petrol and gas for garden appliances (mowers etc.), barbecues or other commonly used household goods or appliances in the property (or garden shed) provided that these things are safely stored in appropriate containers;
• not put any oil, grease or other harmful or corrosive substance into any toilet, sink, bath, shower, washing machine, dishwasher or drain;
• prevent water pipes freezing in cold weather - by not removing any lagging and by keeping the property appropriately heated;
• avoid danger to the property or neighbouring properties by way of fire or flooding - for example, not leaving lit candles unattended or overloading electricity sockets with too many plugs or leaving taps running;
• keep the property and its fitted items clean;
• not to do anything to stop the smoke detectors, carbon monoxide detectors, heat detectors or the fire alarm system from working as they should; and
• not to remove or prevent the working of or do anything else to door closer mechanisms.