Online library

On 1st December 2017 a new type of tenancy will be introduced to Scotland called the Private Residential Tenancy (PRT).  The Private Housing (Tenancies) (Scotland) Act 2016 implemented this change. 

Key feature of this new tenancy are as follows:

1. There will be no end date.  

2. Statutory Terms of Tenancy will be mandatory

3. The no fault basis of eviction will not be applicable. Therefore, Landlords cannot recover possession of the property merely because the tenancy has come to an end.

4. Termination of the Tenancy can only be effected in terms of Part 5 of the 2016 Act. 

It is hoped that the new tenancy will bring about  a new, modernised and simplified tenancy system for the private sector in Scotland.

A Private Residential Tenancy gives security of tenure to tenants and restricts  the landlord’s right  to repossess a property. The following points must be observed:

• The tenancy must have started after 1st December 2017

• The tenant (s)  is an individual, and

• It is the tenant (s) only or principal home,

• The tenancy is not a type excluded from constituting a PRT (for exclusions see schedule 1 of the 2016 Act).

• The agreement must be in writing, signed by the parties.

• It must state the start date of the tenancy

• It must state the statutory terms contained within the Private Residential Tenancies (Statutory Terms) (Scotland) Regulations 2017.

• State the amount of rent due and when it should be paid.

• Say who is responsible for decoration and repairs to the inside and outside of the property.

• State if there are any conditions or restrictions to the use of the property.

• Mention the responsibilities of the tenant, such as insuring their own personal belongings.

Written terms of tenancy must be provided to the Tenant(s) on the day the tenancy commences.

The Landlord must provide the Tenant with prescribed information. The information to be provided will depend on the style of tenancy agreement used.

The Scottish Government has published a recommended model tenancy agreement. Landlord’s using this style must provide prescribed information called the  “Easy Read Notes for the Scottish Government Model Private Residential Tenancy Agreement” .

Landlords using an alternative tenancy agreement must ensure the agreement contains the statutory terms and must provide prescribed information called  the “Private Residential tenancy Statutory Terms Supporting Notes”.

Tenants can apply to the First-tier Tribunal (Housing and Property Chamber) where:

1. The Landlord has failed to provide the tenant with a written Private Residential Tenancy Agreement (which includes the statutory terms) on the start date of the tenancy, and/or

2. The Landlord has failed to provide the tenant with the prescribed information before the end of the day on which the tenancy commences,

The tribunal has the power to:

1. Draw up a document which accurately reflects all of the terms of the tenancy or

2. Order the Landlord to pay the tenant an amount not exceeding three months’ rent for a failure of one of the above or an amount not exceeding six months’ rent for a failure to provide both.

A Short Assured Tenancy gives special rights to the landlord to repossess a house he has let. In order to be a Short Assured Tenancy as opposed to any other form of tenancy the following points must be observed:

An Assured Tenancy is a private sector tenancy which was created after 2nd January 1989. This type of tenancy provide security of tenure to tenants.   This means the Landlord cannot repossess the property unless an eviction ground specified with schedule 5 of the Housing (Scotland) Act 1988 exists and, in some cases, the court is satisfied that eviction is reasonable.

The statutory requirements for an assured tenancy are set out in section 12 of the Housing (Scotland) Act 1988:

• The tenancy must have started after 2 January 1989 and before 1st December 2017, and

• There must be a tenancy

• The property in must be rented as a separate dwelling,

• The tenant (s)  or at least one of the joint tenants is an individual,

• The property must be the tenant (s) only or principal home,

• The tenancy is not a type excluded from constituting an assured tenancy (for exclusions see schedule 4 of the 1988 Act.

A Short Assured Tenancy gives special rights to the landlord to repossess a house he has let.

Short assured tenancies are a version of the assured tenancy and so the above requirements for assured tenancies apply to them.  However, in addition:

• the term of the lease must be a period of not less than 6 months and

An AT5 form must be served on the Tenant(s) before the creation of the tenancy stating that it is a short assured tenancy, If an AT5 notice is not issued or the tenancy is for less than six months, then the tenancy will be be classed as an Assured Tenancy.

The key difference between an Assured Tenancy and a Short Assured Tenancy is that at the end of the initial term the tenant cannot be asked to leave simply because the tenancy has reached its end date. Instead the landlord must have a specific reason (or ground). It is therefore common practice for the majority of private landlords to always use Short Assured Tenancy agreements in Scotland.

An AT5 is the special notice that you must give to the tenant in order for the tenancy to be short assured rather than assured. This must be issued prior to the tenancy being created, for example, prior to the signing of the lease, therefore if both documents are signed on the same day it is essential that the times of signing are recorded on both documents so that it can be clearly seen that the AT5 has been presented and signed first.
The landlord must serve the principal document on the Tenant (s) and keep a copy.

If there is more than one tenant on the tenancy agreement, each tenant must receive an AT5.
Copies of AT5 forms can be downloaded from the NLA website.

• The agreement must be in writing, signed by the parties and witnessed by an independent person.

• It must state the length of time the property is being let for, which should not be less than six months. In calculating the period the law can ignore the first date. For example, a tenancy from 1 January to 30 June has been held to be for less than 6 months and not a short assured tenancy. To avoid this use “1 January to 1 July both days inclusive”.

• State the amount of rent due and when it should be paid.

• Advise if the rent can be increased and how it will be calculated.

• Say who is responsible for decoration and repairs to the inside and outside of the property.

• State if there are any conditions or restrictions to the use of the property.

• State the responsibilities of the tenant, such as insuring their own personal belongings.

The tenancy agreement will say how long the property is rented for, for example, six months or a year. At the end of that time, the tenancy will automatically renew itself unless:

– You give the tenant proper and timeous written notice that you want them to leave at the end of the tenancy; or

– The tenant gives notice that they want to leave the property.

If neither you nor your tenant has given notice, the tenancy will renew itself. This will be for the same length of time, subject to a maximum period of 1 year, unless your tenancy agreement says that it will be for a different period.

For example, the tenancy agreement might say ‘the property is let for a period of six months and then monthly thereafter’. This would mean that your tenancy agreement would be for an initial terms of  six months and that it could renew itself one month at a time after that.

There is no need for a new AT5 or new tenancy agreement each time the tenancy renews itself.

You cannot access the property unless the Tenant permits you access following your having given notice as set out in your tenancy agreement.
There are special rules if you need to go in to do repairs or to inspect the condition of the property. You or someone acting on your behalf must give the tenant written notice as provided for in your tenancy agreement that they intend to attend.
If the tenant does not agree to having work done in the property or fails to permit access, you can apply to the First-tier Tribunal (Housing and Property Chamber) who can facilitate access.