Proposals for regulations and policy supporting the Private Housing (Tenancies) (Scotland) Act 2016: analysis of consultation responses, 1 March 2017

Common themes

This chapter sets out a number of common themes to emerge from the analysis of responses. Most of these common themes were raised by a number of different respondents, across a range of questions. In addition, a small number of respondents made similar points at many of the questions.

Easy to understand, clear documents

A frequently-made point was that all documents, including both the Notices and the Model Tenancy Agreement ( MTA) should be as simple and easy to understand as possible. Advice, Information or Ombudsman Service respondents, Campaign Bodies or Groups and Letting Agents were particularly likely to highlight this requirement. Whilst sometimes noting that the documents need to contain a significant amount of information, a small number of these respondents felt that the current drafts could be shortened.

Another frequently-made point was that parts of the Notices and MTA could use simpler English and/or would benefit from a plain English review. Industry Bodies and Letting Agents were most likely to raise this issue. Other points made included that the unnecessary use of legal language should be avoided, a range of terms and phrases used should be defined and that there should be consistent use of terminology both within and between the various documents. It was also suggested that it is not clear which parts of the MTA are intended to be Notes for the Landlord and which should form part of the agreement.

Layout and design of documents

A number of comments were made about how the various documents have been set out. Landlords, Landlord Representative Bodies, Legal Bodies or Firms and Letting Agent respondents were amongst those raising these issues. In the case of the Notices, a small number of respondents commented that as standard as possible a structure should be used.

Also with reference to the Notices, a frequently-made suggestion was that there should be greater use of lists of given options and/or tick box lists. Across all the documents, it was suggested that use should be made of bold face type but that care should be taken to use it consistently. It was noted that in the MTA it is used to indicate whether a Term is mandatory or discretionary but elsewhere it is used for emphasis.

Other comments focused on the use of online or electronic documents and were generally supportive of this approach. However, a small number of specific issues were raised, including that the software used for the online version needs to be compatible with several generations of operating systems.

Another suggestion, in this case made particularly about the Notices, was that commentary on where to receive further information and advice would be best placed at the beginning of each of the documents. Advice, Information or Ombudsman Service respondents and Campaign Bodies or Groups were particularly likely to make this suggestion.

Links to further information or advice

In addition to commenting on the placing of information about how and where to access any advice required, some respondents also commented on the type of information which should be included. Advice, Information or Ombudsman Service respondents, Campaign Bodies or Groups and Industry Body Representatives were amongst those raising this issue.

Amongst the specific suggestions for content to be added were: contact email or telephone numbers for a range of free and independent advice providers, such as Shelter Scotland and Citizen's Advice Bureau; information about the Law Society of Scotland being able to help with finding a solicitor; an explanation that a licensed letting agent can give advice on housing-related matters; and the suggestion that the local authority can be contacted, particularly in relation to the validity of Notices which have been served. It was also suggested that the documents should highlight to the tenant that they might be eligible for legal aid.

Extent and coverage of guidance

A number of respondents, across all the respondent types, made points about the guidance provided within the draft documents. Overall, respondents tended to suggest that the guidance should be more extensive and should provide clear and sometimes detailed explanations of how the Notices and/or MTA will work in practice. Further points made included that the Notices sometimes pre-suppose that tenants or landlords will have certain knowledge, for example around what constitutes a breach of the terms of a tenancy, what a Rent Pressure Zone is or how the First-tier Tribunal works.

A particular area about which a number of respondents were looking for further guidance was in relation to the serving of Notices. Examples of the types of questions posed included how and when Email can be used and how the method of serving documents can affect the dates and timescales which may then apply. Specific suggestions included adding in working examples of how to be compliant with the date-served requirements and how notice periods should be calculated.

Another topic about which further guidance was requested was around the information which may need to be supplied. This was generally with reference to the information which landlords may be required to provide to either the tenant or the Rent Officer. A suggestion was that certain of the Notices should state clearly what information or evidence the landlord is required to provide.

Joint Tenancy Arrangements

A number of respondents, and in particular Industry Body, Landlord Representative Body and Legal Body or Firm respondents, raised issues around how both the Notices and MTA would operate in the case of joint tenancies. The types of questions posed included when all joint tenants need to be named on or sign documents and how the Notices or the MTA will be applied if one of the joint tenants is no longer resident. With specific reference to the MTA, a number of other comments focused on joint and several liability and when this would or would not apply.

Landlord specific issues

A small number of respondents raised issues about how the regulations will apply to or would work for particular types of landlord. These included:

• Whether consideration can be given to how certain of the regulations, and particularly those requiring a landlord to supply information about their properties, can be made more user friendly for those with a substantial number of properties.
• How various aspects of the Notices and the MTA will work for third sector organisations providing supported accommodation within properties they lease from a landlord, including a Registered Social Landlord. In particular, it was suggested that flexibility will be required if the MTA is to be suitable for Supported Living Tenancies.

Mandatory or discretionary elements of the MTA

A number of respondents commented on which elements of the MTA should be mandatory and which discretionary. A number of respondents, including Campaign Body or Group, Local Authority and Tenant or Resident Group respondents, identified a number of tenancy terms which they felt should become mandatory. The most frequently-identified were those covering Contents and Condition, Bins and Recycling and Dangerous Substances. There were also a small number of instances of respondents (primarily Landlord Representative Body respondents), suggesting that terms which are currently mandatory should be made discretionary.