Private residential tenancy statutory terms: supporting notes (December 2017)

The Nine ‘Statutory Terms’

Statutory Term 1 – Rent Receipts 

If the tenant pays rent in cash then the landlord must give the tenant a written receipt.  

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.

Statutory Term 2 – Rent Increases

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.

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.   

"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.  

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.

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.

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. 

If the tenant accepts the rent increase, they should return Part 3 of the rent-increase notice to the landlord to tell them that.  

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.

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.  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). 

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.

The Cost of Living (Tenant Protection) (Scotland) Act was introduced in October 2022. It is an emergency response to the situation caused by the impact of the cost crisis on people who rent their home in Scotland. From 6 September 2022, there is a temporary cap on rent increases during private tenancies. From 1 April 2023, the cap is set at 3% and is expected to stay in place until 31 March 2024 at the latest. Private landlords can apply to Rent Service Scotland (RSS) for a rent increase of up to 6% to help cover certain increases in costs in defined and limited circumstances. Your landlord must inform you when they make this application.

• Full details of the emergency measures.

Statutory Term 3 – Subletting etc 

The Agreement will probably only give the landlord's permission for the tenant(s) that are named in the Agreement to live in or use the property. 

The tenant is not allowed to:

• enter into another agreement to sublet the property (or part of it) to another person, or
• take in a lodger, or 
• enter into an agreement to try to transfer the tenancy (or part of it) to somebody else, or 
• allow another person to start living in the property (or part of it) or using it for some other purpose. 

As a general rule, if the tenant wants to allow anyone else to live in or use the property as their only or main home, then the tenant must get the landlord's written permission.  The landlord does not have to give that permission.

Statutory Terms 4 And 5 – Notification About Other Residents

If a person who is over 16 lives at the property with the tenant as their only or main home, then the tenant has to write to the landlord (or email the landlord if email is the agreed method of contact).  The tenant's letter (or email) must tell the landlord the name of the person who has started to live at the property with the tenant and the tenant's relationship with that person. 

If that person leaves the property, the tenant must also tell the landlord that this has happened. For example, if a couple take a joint tenancy and live with their two children aged 14 and 15, when each of those children become 16, the landlord should be notified. Also, where a husband takes a single tenancy but lives with his wife, he should notify the landlord that his wife lives with him.

If a tenant dies while they are the only tenant under a private residential tenancy, a partner, family member or carer can inherit their tenancy under certain conditions, as long as the tenant did not inherit the tenancy from someone else in the first place. 

In order for a person to inherit the tenancy, they must: 

• have been living in the property as their only or main home at the time of the tenant’s death, and
• the tenant must have already notified the landlord . 

There are several types of relationship with the tenant which might allow someone to inherit the tenancy:

1. If the person was married or in a civil partnership with the tenant at the time of the tenant’s death, the person will inherit the tenancy, as long as:

• they have been living in the property as their only or main home at the time of the tenant’s death, and
• the tenant must have already notified the landlord . 

2. If the person was a partner of the tenant (but was not married to them or in a civil partnership with them) to be allowed to inherit the tenancy:

• they must have been living in the property as their only or main home for at least 12 months without any breaks up to the tenant’s death, and 
• the tenant must have already notified the landlord  

The 12 months will be counted from the time when the tenant told the landlord that the person was living in the property. Any time when the person was living in the property before the landlord was told will not count.

3. If the tenant does not have a partner to inherit their tenancy, any qualifying family members who are at least 16 years of age when the tenant dies can inherit the tenancy, if:

• they have been living in the property as their only or main home for at least 12 months without any breaks up to the tenant’s death, and 
• the tenant must have already notified the landlord 

The 12 months will be counted from the time when the tenant told the landlord that the person was living in the property. Any time when the person was living in the property before the landlord was told will not count.

Statutory Terms 6, 7 And 8 – Access For Repairs Etc.

The tenant must by law let the landlord (or their workmen or advisers) have reasonable access onto the property for "authorised purposes".   

The tenant should be given at least 48 hours' notice before this happens - unless it is an emergency.   If it is an emergency, then less than 48 hours' notice might be given, or immediate access might be needed (with no notice beforehand).   An emergency might include a dangerous electrical fault or a burst water pipe in the property which is flooding the property or any flat below it.  Emergencies are repairs that are causing danger or, if left, are likely to cause damage to the property or property nearby if they are not repaired quickly.  

Reasonable access, for non-emergency work, would generally mean access during the working day (8 a.m. to 6 p.m.) Monday to Friday. If both landlord and tenant agree, then the tenant could allow access outwith such times if this would allow work to be done more quickly.

A landlord will usually hold a set of keys for the property.  However, unless it is for an emergency, the landlord is not allowed to use those keys to enter the property without the tenant's consent.

If the tenant does not give consent then the landlord can apply to the Tribunal for an order to take access. The Tribunal will try and agree a date for access with the tenant.  If the tenant refuses to agree a date for repairs than the Tribunal can fix a date when the landlord can enter.

Authorised purposes are: 

• carrying out work in the property which the landlord must carry out or is allowed to carry out, in either case by law or in terms of the tenancy or in terms of any other agreement between the landlord and the tenant;
• checking the property to see whether any work needs to be done - for example repairs; and
• carrying out a valuation of the property.

Statutory Term 9 – Termination

This section details the ending of the Agreement by the landlord or the tenant. 

Tenant ending the Agreement

The tenant can end the tenancy at any time by giving written notice to the landlord. That written notice must say that:

• the tenant wants to end the tenancy and
• the date on which the tenancy is to end.

(If it is a joint tenancy, all of the tenants must give the notice, not just one or some of them. See more detail later in this section.)

The tenant's notice must be given to the landlord 28 days (or 4 weeks) before the date on which the tenant wants the tenancy to end.

If the tenant gives the notice to the landlord by hand, then the notice would have to be given 28 days (or 4 weeks) before the date on which the tenant wants the tenancy to end

If the tenant:

• posts the notice or
• sends the notice by email (if this has been agreed as the method of communication),

then the notice would have to be posted or emailed at least 30 days before the date on which the tenant wants the tenancy to end. This allows time for the notice to be received by the landlord. 

If the tenant wants to end the tenancy sooner than 28 days, they may be able to agree this with their landlord.  This landlord’s agreement must be in writing.   If the landlord does not agree, the tenancy will continue for the minimum 28 day period even if they move out of the property sooner.

If the Agreement is a joint tenancy then all of the joint tenants have to agree to the ending of the Agreement.  One joint tenant cannot end the Agreement on behalf of all tenants.  Any notice from the tenant to end the tenancy would have to be signed by all of the joint tenants. 

If a joint tenant wants to end the tenancy by sending notice to the landlord by email then this would be done either:

• by each of the people who are joint tenants sending their own email to the landlord, all saying that the tenancy is to end on the same date; or
• by each of the joint tenants signing a paper copy notice to the landlord and then one of those joint tenants scanning or taking a photo of that signed paper copy notice and attaching it to an email and emailing it to the landlord, on behalf of all of the joint tenants.

There are times, such as where there has been domestic violence, where a court can make an exclusion order or order the transfer of a joint tenancy into the name of one tenant, or a tenancy in the name of one partner into the name of the other.  This is under the Matrimonial Homes (Family Protection) (Scotland) Act 1981 or the Civil Partnership Act 2004.  If a tenant needs advice about this, they could contact one of the advice groups listed at the end of these Notes or Scottish Women's Aid (http://womensaid.scot/)

Landlord ending the Agreement

The Landlord can bring the tenancy to an end only if one of the 18 grounds for eviction in schedule 3 to the 2016 Act applies. For the period when the Cost of Living (Tenant Protection) (Scotland) Act 2022 is in force, 3 additional, temporary eviction grounds will apply. These have been temporarily added to schedule 3 of the 2016 Act.

The landlord's written notice to the tenant, ending the tenancy, must say:

• which one or more of the 21 grounds is the reason why the landlord is ending the tenancy;

• why the landlord thinks that ground applies; and
• the date on which the landlord expects to become entitled to make an application for an eviction order to the First-tier Tribunal for Scotland Housing and Property Chamber..

The landlord should provide the tenant with a copy of any supporting evidence for the eviction ground when they serve the Notice to Leave on the Tenant.

The tenancy end date will be set out in the Notice to Leave.   There are four possible options for the tenant:-

1. The tenant could choose to leave on the date in the Notice to Leave.

2. Despite the date set out in the notice, the tenant may ask the landlord to agree to a later date, in which case the tenancy will end on that date - this is only if the landlord agrees. 

3. If the tenant believes that the ground(s) for ending the Agreement given in the notice do not apply, then they should discuss this with the landlord and also contact the advice groups listed at the end of these Notes.  

4. The other option would be for the tenant to wait for the landlord to apply to the Tribunal for an Eviction Order, as at that stage the landlord will be asked by the Tribunal to prove that the ground(s) specified for eviction do apply. The tenant does not need to move out until an Eviction Order is granted by the Tribunal.

Where the tenant chooses not to leave

If the tenant does not leave the property on the tenancy end date, the landlord can apply to the Tribunal to get an order to evict the tenant.  The tenancy then ends on the date set out in that eviction order. 

If the landlord applies to the Tribunal for an eviction order, the Tribunal will ask the landlord to prove to the Tribunal why the ground set out in the landlord's notice applies to allow the landlord to end the tenancy.    

This Tenancy may be ended by:

• The Tenant giving notice to the Landlord
• The Tenant giving the Landlord at least 28 days’ notice in writing to terminate the tenancy, or an earlier date if the Landlord is content to waive the minimum 28 day notice period.  Where the Landlord agrees to waive the notice period, his or her agreement must be in writing.  The tenancy will come to an end on the date specified in the notice or, where appropriate, the earlier date agreed between the Tenant and Landlord.  To end a joint tenancy, all the Joint Tenants must agree to end the tenancy.  One Joint Tenant cannot terminate the joint tenancy on behalf of all Joint Tenants. 
• The Landlord giving notice to the Tenant, which is only possible using one of the 21 grounds for eviction set out in schedule 3 of the Act. For the period when the Cost of Living (Tenant Protection) (Scotland) Act 2022 is in force, 3 additional, temporary eviction grounds will apply. This can happen either:
• By the Landlord giving the Tenant a Notice to Leave stating one or more of the eviction grounds, and the Tenant choosing to leave.  In this case, the tenancy will come to an end on the day specified in the Notice to Leave, or the day on which the Tenant actually leaves the Let Property, whichever is the later.

or:-

• By the Landlord giving the Tenant a Notice to Leave stating one or more of the eviction grounds and then, if the Tenant chooses not to leave on the day after the notice period expires, subsequently obtaining an eviction order from the Tribunal on the stated eviction ground(s).  In this case, the tenancy will come to an end on the date specified in the eviction order. 

The Landlord can bring the tenancy to an end only if one of the 21 grounds for eviction apply.  If the Landlord serves a Notice to Leave on the Tenant, he or she must specify which eviction ground(s) is being used, and give the reasons why they believe this eviction ground applies.

If the Landlord applies to the Tribunal for an eviction order, the Tribunal will ask the Landlord to provide supporting evidence for any eviction ground(s) being used.

The amount of notice a Landlord must give the Tenant will depend on which eviction ground is being used by the Landlord and how long the Tenant has lived in the Let Property. 

The Landlord must give the Tenant 28 days’ notice if, on the day the Tenant receives the Notice to Leave, the Tenant has been entitled to occupy the Let Property for six months or less, or if the eviction ground (or grounds) that the Landlord is stating is one or more of the following. The Tenant: 

• is not occupying the Let Property as his or her only or principal home
• has breached the tenancy agreement
• is in rent arrears for three or more consecutive months
• has a relevant criminal conviction
• has engaged in relevant antisocial behaviour
• has associated with a person who has a relevant conviction or has engaged in antisocial behaviour. 

The Landlord must give the Tenant 84 days’ notice if, on the date the Tenant receives the Notice to Leave, the Tenant has been entitled to occupy the Let Property for over six months and the Notice to Leave does not rely exclusively on one (or more) of the eviction grounds already mentioned in this paragraph.      

The Landlord must secure repossession only by lawful means and must comply with all relevant legislation affecting private residential tenancies.

There are 21 grounds that allow a landlord to end a tenancy

All grounds for eviction are ’discretionary’ whilst COVID-19 emergency procedures are in place. 

More detail on all of the above 18 grounds is given below.

1. Landlord intends to sell the let property

This ground applies if your landlord plans on putting the property up for sale within three months of you moving out.

They'll need evidence to prove it – this could include a letter from a solicitor or an estate agent, or a recent home report for the property.

1A. Landlord intends to sell property to alleviate financial hardship

This ground applies if the landlord is entitled to sell the let property, is suffering financial hardship, and intends to alleviate that hardship by selling the let property for

market value, or at least put it up for sale, within 3 months of the tenant ceasing to occupy it. They'll need evidence to prove it such as a letter of advice from an approved money advisor or local authority debt advice service, a letter of advice from an independent financial advisor, a letter of advice from a chartered accountant, a letter of engagement from a solicitor or estate agent concerning the sale of the let property or an affidavit stating that the landlord has that intention.

2. Let property to be sold by lender

This ground applies if your landlord's mortgage lender wants to repossess the property and sell it. 

3. Landlord intends to refurbish the let property

This ground applies if your landlord wants to carry out major works to the let property that are so disruptive you wouldn't be able to live there at the same time.

Example of evidence could include planning permission, or a contract between your landlord and an architect or a builder for the work to be carried out. 

4. Landlord intends to live in the let property

This ground applies if your landlord wants you to move out of the property so they can move in. Evidence could include an affidavit (a written statement, signed under oath in the presence of a Notary Public or a Justice of the Peace, that can be used as evidence at the Tribunal) saying this is what they are going to do.

4A. Landlord intends to live in let property to alleviate financial hardship

This ground applies if the landlord is suffering financial hardship, and intends to alleviate that hardship by occupying the let property as the landlord’s only or principal home for at least 3 months.

5. Landlord's family member intends to live in the let property

This ground applies if a member of your landlord's family plans to move into the property as their only or main home for at least three months.

 

Members of your landlord's family who qualify for this are:

•         their spouse

•         their civil partner

•         someone living with them as though they were married to them

•         a parent or grandparent

•         a child or grandchild

•         a brother or sister

•         step or half relatives (like a stepson or half-sister)

•         a person being treated as someone's child even if they aren't related biologically or legally

•         any family member (as listed above) of your landlord's spouse, civil partner or person living with them as though they were married

•         the spouse or civil partner of any family members listed above, or someone living with them as though they were married

Your landlord will need evidence for this ground. This could include an affidavit stating that this is what their family member intends to do.

 

6. Landlord intends to use the let property for non-residential purpose

This ground applies if your landlord wants you to move out so they can use the property for something other than a home.  Evidence could include planning permission that will let them use the property for a different purpose. 

7. Let property required for religious worker

This ground applies if the property is held to be available for someone who has a religious job (like a priest, nun, monk, imam, lay missionary, minister, rabbi or something similar).  The ground only works if the property has been used for this purpose before.

7. Tenant has a relevant criminal conviction

This ground applies if you're convicted of an offence punishable by imprisonment that involved you either:

• using the property for illegal reasons
• letting someone use the property for illegal reasons
• committing a crime within or near the property

Your landlord has to apply to the Tribunal within a year of you being convicted, unless they have a reasonable excuse for not applying before then. 

8. Tenant has stopped being — or has failed to become — an employee

This ground applies if your landlord let you move in because you were their employee (or were going to be one), and now you aren't

9. Tenant no longer needs supported accommodation

This ground applies if you moved into the property because you had a need for community care and you've since been assessed as no longer having that need.

10. Tenant is no longer occupying the let property

This ground applies if the property isn't being used as your main or only home. This doesn't count if your landlord failed their duty to keep the property in good repair and you had to move out for your own safety. 

11. Tenant has breached a term of the tenancy agreement

This ground applies if you haven't complied with one of the terms of tenancy.

This doesn't apply to cases where you haven't paid your rent (known as 'rent arrears') – there's a separate ground for this. 

12. Tenant is in rent arrears over three consecutive months

This ground applies if you've been in 'rent arrears' (owed rent payments) for three or more months in a row. In deciding whether it is reasonable to evict, the Tribunal will consider whether you being in arrears is due to a delay or failure in the payment of a relevant benefit.

 

12A. Tenant has substantial rent arrears

This ground applies if the tenant has accrued rent arrears under the tenancy in respect of one or more periods and the cumulative amount of those rent arrears equates to, or exceeds, an amount that is the equivalent of 6 months’ rent under the tenancy when notice to leave is given to the tenant.

13. Tenant has a relevant criminal conviction

This ground applies if you're convicted of an offence punishable by imprisonment that involved you either:

•         using the property for illegal reasons

•         letting someone use the property for illegal reasons

•         committing a crime within or near the property

Your landlord has to apply to the Tribunal within a year of you being convicted, unless they have a reasonable excuse for not applying before then.

14. Tenant has engaged in relevant antisocial behaviour

This ground applies if you've behaved in an antisocial way to another person, by doing something which either:

•         causes them alarm or distress

•         is a nuisance or annoyance

•         is considered harassment

The First-tier Tribunal will consider the behaviour, who it involved and where it occurred to decide whether to issue an eviction order.

To use this ground, your landlord has to apply to the Tribunal within a year of the behaviour taking place, unless they have a reasonable excuse.

15. Tenant has associated in the let property with someone who has a criminal conviction or is antisocial

This ground applies if you allow someone into the property and they behave in an antisocial way that would have them evicted if they were the tenant.

This person could be:

• a sub-tenant
• your lodger
• someone you let into the property on more than one occasion

To use this ground, your landlord has to apply to the Tribunal within a year of the conviction or behaviour taking place, unless they have a reasonable excuse.

16. Landlord has had their registration refused or revoked

This ground applies if your landlord isn't registered as a landlord in the local council area where the property is located.

This could be because the local council has either:

• refused to enter them in the register
• removed them from the register

17. Landlord's HMO licence has been revoked

This ground applies if the HMO (House of Multiple Occupancy) licence for the property has been removed and keeping all the tenants in the property would no longer be legal. 

18. An overcrowding statutory notice has been served on the landlord

This ground applies if an 'overcrowding statutory notice' has been served on your landlord because the property is overcrowded to the extent that it may affect the health of the people living there. 

The Tenant agrees to remove all of his or her belongings when the Tenancy ends. The Tenant’s belongings may include personal effects, foodstuffs and consumables, belongings, and any other contents brought in to the Let Property by the Tenant.

Unlawful Eviction

If the landlord tries physically or by force to remove a tenant from the property without the Tribunal’s permission, the landlord is committing a crime.  If the landlord physically removes the tenant from the property, or threatens to do so, or if the landlord changes the locks, the tenant should report the matter to the police.  (The non-emergency number to contact the police is 101.)

For an eviction to be lawful (so allowed by law), after the landlord obtains the eviction order from the Tribunal, the eviction (or removal of the tenant from the property) must be done by Sheriff Officers, not by the landlord or by the landlord's employees or agents.

The law protects the tenant against harassment and unlawful eviction in two ways:

• by making harassment and unlawful eviction crimes; and
• by allowing the tenant to claim damages (ask for money) through the courts.

The law against harassment applies if the landlord personally harasses or evicts the tenant unlawfully or if somebody else does it for the landlord.

Wrongful Termination Orders

If the tenant has left the property and thinks they have been misled into leaving the property, they can apply to the Tribunal for a 'wrongful termination order'.  The Tribunal may make a wrongful termination order if it decides that the landlord:

• misled the Tribunal into giving an eviction order it should not have
• misled the tenant into leaving the property.

An example of a possible wrongful termination would be where the landlord serves notice to leave on the tenant on the ground that they intend to sell the property, but then takes no action to do so, and simply lets it out to another tenant.

If a wrongful termination order is issued, the landlord will be told to pay the tenant a payment of no more than six months' rent.   The local council will also be told about the order being made and will take this into account when deciding if the landlord is (or remains) a "fit and proper" person registered to be a landlord.