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Renting Guide for Tenants in Scotland


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Unlock the Law's property guide for tenants in Scotland helps to explain what's involved inrenting a property and also the responsibilities of you & your landlord. 

Having responsibility for a property is something that everyone will have to consider at some point in their lives. However not everyone is convinced on of the merit to purchasing their own home, either because of the level of finance that tends to be required, or the amount of time and effort that the upkeep of the property will require. As a result a significant number of people decide to rent a property from a landlord, where it is unlikely that the same level of finance and responsibility will be required.

renting-guide-tenants-scotland

If you are thinking of renting a property in Scotland, you will need to answer a number of questions: who do you want to rent from?; how much do you want to pay in rent?; and what are the rules for payment of rent and if you default? In this guide, the team at Unlock the Law tell you everything that you need to know about renting a property in Scotland.

WHAT WILL THIS GUIDE COVER?

  • The rules governing renting
  • The responsibilities of both landlords and tenants

WHAT QUESTIONS WILL THIS GUIDE ANSWER?

What does renting a property involve?

Renting a property is the exact opposite to purchasing a home for yourself. In deciding to rent a property i.e. become a tenant, you will pay a fee (rent) in order to live in a property for a specified length of time. This information will normally be set down in what is known as a 'Tenancy Agreement'.

Who can I rent from?

In considering rent a property from a landlord, you will have the option of renting from either:

public sector landlord

Public sector landlords will be owners of property who are either a local authority, or a registered social landlord (a housing association registered with the Scottish Housing Regulator).

If either of these kinds of organisation agree to you becoming a tenant of theirs, you will generally be known as a Scottish secure tenant. In some cases you may be deemed to be a short Scottish secure tenant, but this is increasingly rare.

private landlord

A private landlord is someone who owns a property in their own right, and lets it out to tenants. It is important to note that all private landlords are required to register with the local authority as such. This requirement is designed to ensure that they are a 'fit and proper' person to be allowed to rent properties to other people.

Tenants of a private landlord will, where they became tenants after 2 January 1989, fall into one of three categories:

assured tenant

If you do not have a resident landlord, and they do not provide food or services, then you will be an 'assured tenant'. You will pay rent for the property that you live in as your main (or only) home, and you will have a written tenancy agreement.

short assured tenant

Where your tenancy is for a fixed period of time that is not less than six months, and before you entered the property your landlord have you a written 'Notice of a short assured tenancy', you will be a 'short assured tenant'.

common law tenant or non-tenant occupier

If you do not fall into either of the above categories, you will in all likelihood be a 'common law tenant' or 'non-tenant occupier'. Individuals that fall into this category tend to, amongst other things, (i) pay very little or no rent; (ii) are a student that has been given a tenancy by their university/ college; or have a company let.

What are my rights as a tenant?

The rights that you will have as a tenant will depend on the kind of tenancy that you have with a particular landlord:

Rights in respect of a public sector landlord

As a Scottish secure tenant, you will have the right to stay in the accommodation that is the subject of the tenancy agreement, provided that you do not break its terms. Furthermore you will also be entitled to:

  • The right of access to personal files that the landlord holds relating to you;
  • Where the landlord gives their permission, the right to pass on your tenancy to someone else;
  • The right not to be treated unfavourably by your landlord because of your sexuality, religion, race, sex, disability or gender reassignment; and
  • To have certain repairs carried out by your landlord, known as the 'Right to Repair'. This right covers small (to a maximum of £350) and urgent repairs which, if left unattended, could impact on your health, safety or security. It is important to be aware however that this right is subject to certain restrictions:
    • It should be noted that public sector landlords are only obliged to keep the property that you live in, in a reasonable state of repair. In practice this requires that public sector landlords (i) keep the structure and exterior of the property in good repair; (ii) maintain the water and gas pipes along with all electrical wiring; (iii) upkeep of sinks and bathrooms in the property; and maintenance of all fixed and water heaters;
    • Public sector landlords are not responsible for repairing anything in the property that you have damaged carelessly – if they do repair these, they are entitled to charge you for the cost that they incurred. Furthermore, public sector landlords are not obliged to repair items in the property that you are entitled to remove when you leave e.g. your electric or gas fire;
    • It should also be noted that public sector landlords are not responsible for maintaining cookers (either gas or electrical);
    • The timing within which a repair is to be completed will depend on the circumstances: if the repair is urgent then you are entitled to expect it to be attended to quickly. Furthermore in respect of 'small' repairs, you may be able to arrange for these to be done yourself – adhering to the £350 limit which you can then claim back from your landlord. It is advised that you check that any repairs you organise yourself fall within the 'Right to Repair' scheme, otherwise your landlord is not required to reimburse you for the cost of repairs.

Rights in respect of a private landlord

Generally speaking, regardless of the category that you fall into, all tenants of private landlords share the same rights. These largely mirror those enjoyed by public sector tenants in that you: (i) are entitled to have the property kept in a reasonable state of repair; (ii) cannot be treated unfairly because of your sex, religion, race, religion, sexual orientation, disability or gender reassignment; and (iii) can have your spouse, civil partner or partner, take over your tenancy when you pass away.

It is important to have regard for the state of repair of the property that private landlords must observe. This is known as the 'Repairing Standard'. Landlords must keep the material parts of the property in good working order, including: the structure and exterior of the property; all taps, pipes and wiring; and furnishings provided as part of the tenancy agreement. It should also be noted that it is the landlords responsibility to ensure that all electrical and gas appliances supplied under the tenancy agreement are safe.

What are the rights of my landlord?

Landlords are entitled to what is known as 'reasonable access' to the property in order to carry out any necessary repairs. The meaning of 'reasonable access' will depend on the reason why the landlord is seeking access to the property i.e. if there is an emergency in the property involving a gas leak or other emergency, the landlord is entitled by law to immediate access to the property to carry out the necessary repairs.

It is also important to be aware of the fact that landlords are entitled to enter the property in order to inspect the state that it is in. However this right does normally depend on the condition that they give you (at least) 24 hours written notice, before they attend at the property.

How much rent will I have to pay?

The rules governing the rent that you will need to pay, and any potential increases will also depend on whether you are renting from a public or private sector landlord.

The rent for tenants of public sector landlords is controlled according to the housing policy that the landlord has, along with guidance issued by the Scottish Housing Regulator. Public sector landlords are obliged to consult with you regarding increases in your rent, and must give you four week's notice of their plans to increase your rent. You are entitled to express a view on the proposed increase in rent, which your landlord is required to consider. However they are not bound to observe your views.

In respect of private sector landlords, the level of rent that you will have to pay and any potential increase, will normally have been set down in your tenancy agreement. Where a tenancy agreement does not mention any increase in rent, or a landlord tries to increase it to a rate not specified in the agreement, the law does not require you to pay the increased rate.

What happens if I fall behind in my rent payments?

If you fall behind in the payment of your rent, this could have significant consequences for your ability to continue living in the property. Regardless as to whether you are a public sector or private sector tenant, when you discover that you are going to have trouble paying rent, you should bring this to the attention of your landlord at the earliest opportunity. It may be possible for you to continue living there, where you are able to commit to a repayment plan with your landlord that will clear any arrears you have, and allow you to meet future rent payment.

If you cannot observe any repayment plan, or are otherwise unable to make your rental payments, your landlord may look to evict you from the property. The process for doing this is different for each kind of landlord:

Public sector landlords

There is a process for eviting tenants that public sector landlords must follow:

  1. First, your landlord must send you (and anyone else living in the property aged over 16) a Notice of Proceedings. This is a legal document the begins the eviction process and should provide the following information:
    1. That your landlord is intending to get the courts permission – called 'decree for eviction' – for you to leave their property;
    2. The earliest date that your landlord can contact the court to request a date for the case to be heard on; and
    3. The basis for your landlord wanting to evict you.
  2. Second, you landlord will begin legal proceedings in court and you will be issued with a summons telling you about your case and when it will be hard by the court. A summons is another kind of legal document which will tell you what date you should attend court for your case to be dealt with.
  3. Your case will then come to court and a Sheriff will decide whether or not to grant decree for eviction. You are entitled to defend your position, and that of anyone else living at the property. This will all be taken into consideration by the court. If the court grants decree, court officers known as 'sheriff officers' will be sent to the property to remove your items.

Private landlords

The eviction process is different, depending on the kind of tenant you are:

Assured tenants
  1. You will be served with a notice to quit. This document tells you that your landlord is looking to end the tenancy.
  2. You will be served with a notice of proceedings, telling you when legal proceedings will be taken to eject you from the property.
  3. You will be sent a summons from the sheriff court – outlining the fact that it has been approached by your landlord to evict you, and providing a date for you to attend court - and your landlord will also serve a Section 11 notice to your local authority. A section 11 notice notifies the local council of your landlord's intentions, and they may be able to offer you some help.
  4. Your case will be heard and, where a Sheriff decides to grant an application to evict you, sheriff officers will be instructed to remove your property from the premises.
Short assured tenants

The process involved for evicting short assured tenants depends on whether or not a landlord looks to evict you either before or after the end of your tenancy.
If your landlord seeks to remove you from their property then they must follow a set procedure. As above, they must issue you with (i) a Notice to quit; (ii) a Notice of proceedings; and (iii) you must also be issued with a Summons. It is important to be aware however that a court will only entertain an application to evict you, before the termination of your tenancy agreement, if there is evidence that you have violated its terms.

However if your landlord intends to take possession of their property back at the end of your tenancy, the process is different. First they must issue you wish a Notice to quit, along with 2 months written notice of their wanting the property back (this is called a 'Section 33 Notice'). If you do not exit the property upon expiry of your tenancy, your landlord can approach the court to have you and your property evicted.

Key points

  • Tenants and landlords have specific rights and responsibilities when entering into a Tenancy Agreement;
  • The rights that parties enjoy are largely similar regardless as to whether a landlord is in the public or private sector, but there are exceptions; and
  • Landlords are entitled to evict tenants that do not make payment of their rent. However they can only do so after having followed certain procedures.

Nothing in this guide is intended to constitute legal advice and you are strongly advised to seek independent legal advice on matters that affect you.

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Last Updated

Thursday, 06 August 2015

Categories

Property Law

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