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(This overview is for residential renting. Renting a room rather than a flat or house will be subject to different legislations)
You are urged to seek professional advice on all legal issues
General points
- You cannot be charged a fee or commission for the provision of a let property.
- You are entitled to a rent book supplied by the landlord if the rent is paid weekly.
- You are usually entitled to a written lease clearly setting out the rights and duties of both sides in advance of taking the let.
- If the property is in a bad state of repair or develops any structural defects or dilapidation, the landlord has to make the place habitable - unless you caused the damage.
- You cannot be thrown out or have the locks changed against you when you are out even if you are behind with the rent or in dispute with the landlord. Such actions are a criminal offence and you should report any intimidating behaviour to the police.
- The landlord cannot end your tenancy just because he wants to. It can take a long time, and may be defeated by the tenant.
Getting a Tenancy Agreement
Dealing with Problems
Repairs and improvements
Getting a Tenancy Agreement
What type of tenancy will I have?
A letting of all or part of a house made after 2 January 1989 is normally an “assured” tenancy provided it is the tenant's only or principal home. The Housing (Scotland) Act 1988 gives assured tenants protection from eviction ('security of tenure'), and in certain circumstances they can ask the rent assessment committee to determine a market rent for the house they are renting.
A short assured tenancy is a special type of assured tenancy. It must be for at least six months and gives special rights to the landlord to repossess a house he has let and special rights to the tenant to apply to a rent assessment committee for a rent determination. A landlord must give to the tenant before any tenancy agreement is signed a notice stating that the tenancy on offer is a short assured tenancy.
Do I need to have a lease?
Yes, there must be a formal tenancy agreement between tenant and landlord. The landlord must:
- Draw up a written document setting out the terms of the assured or short assured tenancy;
- Give the tenant a copy, and must not charge the tenant for doing so.
Is there a ‘standard’ lease?
No, there are different types of lease to which different rules apply, but the majority of tenancy agreements with a private landlord in Scotland are known as assured tenancies.
Can the landlord makeup the lease himself?
The landlord can determine certain conditions of the lease himself, but cannot take away certain minimum rights and responsibilities for both landlord and tenant.
What does the lease have to include?
The lease MUST cover:
- Length of the tenancy;
- Rent: how and when it is to be paid and how any rent increases are calculated or otherwise decided on;
- Decorations and repairs: who is responsible for internal decoration and internal and external repairs and maintenance;
- Use of the property: any condition or restriction must be specified.
Can the terms of the tenancy agreement be changed during the period of the tenancy?
Yes, but the landlord and tenant must agree and this may mean that a new tenancy begins. Either the tenant or landlord may, if he is unhappy with the other's proposals and cannot come to an agreement with him, on something acceptable to both of them, refer the notice to a rent assessment committee.
Problems
What happens if the landlord wants the property back before the end of the tenancy?
It takes months for even the best landlord to get the worst tenant out because of the security of tenure offered by assured tenancies: you are entitled to stay in the house or flat unless the landlord can claim certain legal grounds to repossess.
The landlord needs to indicates he is taking proceedings to gain and obtain an order for possession from the sheriff court by serving on the tenant either:
- a notice to quit: a written document served by a landlord on a tenant or by the tenant on a landlord, which has the effect of bringing the contractual tenancy between them to an end at the date on which they agreed that it would end.
or
- a notice of proceedings: this informs a tenant that the landlord intends to start proceedings in court to obtain a court order for possession of his home.
What will the court do?
The court will grant an order provided one of the grounds for possession as set out in the Housing (Scotland) Act 1988 applies if or the tenancy is a short assured tenancy which has been terminated by a notice to quit. The grounds are set out in Schedule 5 to the Housing (Scotland) Act 1988. Grounds 1 to 8 are mandatory grounds: that is, if they are established, the sheriff must grant an order for possession. Grounds 9 to 17 are discretionary grounds: that is, even if they are established the sheriff will grant an order for possession only if he believes it is reasonable to do so.
What do I do if my landlord is threatening me?
It is a criminal offence for anyone to turn a tenant out of his home without a Court Order or to try to make him leave by intimidation, violence, withholding services such as gas or electricity, or any other sort of interference. It is not a legitimate excuse for a landlord to say that he did not intend his actions to harass his tenant or force him to leave.
Repairs and improvements
What should I do if the flat is in need of repair?
This should be specified in the lease, but any good landlord should organise for repairs to be made if requested by the tenant by a phone call, or better still, notification in writing. The landlord is normally obliged under common law to keep the property wind and water tight and in good tenantable condition.
What do I do if the landlord can’t be contacted or is refusing to organise repairs?
- Speak to the local council: ask them to issue either an improvement notice or a repair notice on the landlord. Speak to their Housing Department or Environmental Health Department.
- Speak to your local Citizens' Advice Bureau ( http://www.nacab.org.uk/ ) for impartial advice.
- You can take your landlord to court for damages if you have to get the repairs done yourself because he has refused or neglected to.
You are also entitled to withhold your rent unless specifically excluded by your lease in the event of a default by the landlord - for instance, if he fails to carry out necessary repairs- but this is not something we would recommend – taking the official route is a far safer method.
See the useful numbers section.
What if I want to make improvements to the house or flat?
Making improvements to the house or flat would normally be a matter to be agreed between landlord and tenant, with the tenant's rights being detailed in the written document setting out the terms of the tenancy agreement.
Reminder: Please seek professional advice if you are facing any of the issues raised in this overview.
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