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

Errata List

Errata List – Winter 2018 updates

Changes to the Statutory Terms Supporting Notes pdf

The link under 'In these Supporting Notes' was updated to read:

https://www.housingandpropertychamber.scot/apply-tribunal

Statutory Term 9 – Termination

The link under 'Tenant ending the Agreement' was updated to read:

http://womensaid.scot/

Essential information

Letting Agent

The second paragraph of this section was updated to read:

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 at https://register.lettingagentregistration.gov.scot/search and/or https://www.landlordregistrationscotland.gov.uk/

Details of the property

The link in this section was updated to read:

https://www.gov.scot/publications/private-residential-tenancies-tenants-guide/pages/rent-and-other-charges/

Rent

The link in this section was updated to read:

https://www.gov.scot/publications/private-residential-tenancies-tenants-guide/pages/rent-and-other-charges/

Deposit

The text in this section was updated to read:

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). 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 link in this section was updated to read:

https://www.gov.scot/publications/licensing-multiple-occupied-housing-statutory-guidance-for-scottish-local-authorities/

Absences

Reference to "Note 17 – Reasonable Care" changed to:

as set out in note below on Reasonable Care

The Repairing Standard Etc & Other Information

The links in this section were updated to read:

https://www.gov.scot/publications/fire-safety-guidance-private-rented-properties/

and

https://www.gov.scot/publications/carbon-monoxide-alarms-in-private-rented-properties-guidance/

12. Information

Reference to "Note 18.3 - Gas Safety" was changed to:

see note above on Gas Safety

Reference to "Note 18.4 – Electrical Safety" was changed to:

see note above on Electrical Safety

Reference to "Note 18.7 – Energy Performance Certificate" was changed to:

see note above on Energy Performance Certificate

Data Protection

This section was updated to read:

The landlord must comply with the requirements of the Data Protection Laws to ensure that the tenant's personal data is held securely and only disclosed where there is a lawful basis for doing so.

"Data Protection Laws" means any law, statute, subordinate legislation, regulation, order, mandatory guidance or code of practice, judgment of a relevant court of law, or directives or requirements of any regulatory body which relates to the protection of individuals with regard to the processing of Personal Data to which a Party is subject including the Data Protection Act 2018 and any statutory modification or re-enactment thereof and the GDPR.

"GDPR" means the General Data Protection Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC.

Under data protection law, "personal data" is protected.

Landlords need to comply with the following requirements regarding personal data:

Personal data shall be:-

(a) processed lawfully, fairly and in a transparent manner in relation to individuals ('lawfulness, fairness and transparency');

(b) collected for specified, explicit and legitimate purposes and not further processed in a manner that is incompatible with those purposes; further processing for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes shall not be considered to be incompatible with the initial purposes ('purpose limitation');

(c) adequate, relevant and limited to what is necessary in relation to the purposes for which they are processed ('data minimisation');

(d) accurate and, where necessary, kept up to date; every reasonable step must be taken to ensure that personal data that are inaccurate, having regard to the purposes for which they are processed, are erased or rectified without delay ('accuracy');

(e) kept in a form which permits identification of data subjects for no longer than is necessary for the purposes for which the personal data are processed; personal data may be stored for longer periods insofar as the personal data will be processed solely for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes subject to implementation of the appropriate technical and organisational measures required by the GDPR in order to safeguard the rights and freedoms of individuals ('storage limitation');

(f) processed in a manner that ensures appropriate security of the personal data, including protection against unauthorised or unlawful processing and against accidental loss, destruction or damage, using appropriate technical or organisational measures ('integrity and confidentiality').

Landlords might need to give tenants a privacy notice to tell them what can be done with data which they hold and how they might use it.

There are some situations where the landlord can disclose data about the tenant.

For example, they are allowed to give the tenant's details to the local council or utility companies if that is covered by a privacy notice issued by the landlord to the tenant.

Further guidance on data protection law in relation to tenancies can be found on the Information Commissioners Office website at https://ico.org.uk/

Useful Contacts and Links

Under 'Safety advice', details of the 'Electrical Safety Council' were updated to read:

Electrical Safety First

UK charity that provides electricity safety advice for the home.

https://www.electricalsafetyfirst.org.uk/

Relevant Legislation

The reference to the Data Protection Act 1998 was replaced with:

Data Protection Act 2018 - The landlord must comply with the requirements of the Data Protection Laws to ensure that the tenant's personal data is held securely and only disclosed where there is a lawful basis for doing so.

There have also been minor formatting changes in the pdf and html versions.