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

Section 4: Statutory Terms

The consultation paper notes that Schedule 2 of the 2016 Act outlines the statutory terms which, when regulations are made under the 2016 Act, will be applicable to every private residential tenancy. It explains that the six statutory terms outlined are mandatory terms that will be applicable to every private residential tenancy and form part of the core rights and responsibilities highlighted in bold text in the recommended MTA.

The fact that certain rights will be included as statutory terms does not prevent the parties from supplementing those terms, provided that the additional term does not directly conflict with (and therefore displace) the statutory term. A tenant or landlord can refer a case to the Tribunal where he or she considers that the tenancy agreement appears to displace a statutory term of the tenancy in a way not permitted.

Question 34: Are there any other terms that should be included in the regulations as a statutory term applicable to all private residential tenancies?

In total, 17 respondents made a comment at Question 34. Amongst the additional statutory terms suggested several were already covered in the MTA. Those mentioned most frequently were:

• Term 11 - Deposits.
• Term 33 - Repairing Standard (or the parts thereof).
• Term 38 - Ending a Tenancy.

Other content covered by Terms 1, 2, 3, 5, 6, 8, and 30 was also suggested.

With respect to the repairing standard it was suggested that consideration should be given to whether it would be appropriate to include a statutory term with the effect of imposing a contractual duty on the landlord to repair and maintain the property, in the same terms as the statutory duty set out in section 14 of the 2006 Act. It was noted that, in contrast to the statutory repairing obligations in previous legislation, the section 14 duty is not implied in the parties' contract.

Several respondents also suggested new terms they thought should be statutory terms, sometimes duplicating suggestions made at Question 31. These included:

• A time limit within which the tenant must provide the landlord with written information of any person aged 16 or over residing at the property as his or her principle home and, when such person ceases to reside at the property.
• Terms to capture information on the immigration status of the tenant(s) to fulfil the requirements of the Immigration Act 2014.
• Limitation on the time within which a claim can be brought for wrongful termination e.g. 3 years.