- The January Bullet Point Update touched on the new Code of Practice for Letting Agents http://www.mitchells-roberton.co.uk/bullet-point-update/january-2018-letting-agents-code/ which anyone who falls within the definition of “letting agent” is required to follow.
- This Update is concerned with the requirement for “letting agents” to join the official Register of Letting Agents designed to make sure that every letting agent is suitable to do the job and has met minimum training requirements.
- All those currently carrying out “letting agency work” must have applied to join the register by 1 October 2018 see: https://lettingagentregistration.gov.scot/. This requires a range of information (reflecting The Letting Agent Registration (Scotland) Regulations 2016) including in particular details of those required to hold a relevant qualification or undertake training.
- It also includes the important message:
“The deadline for anyone currently carrying out letting agency work in Scotland to apply to join the register is 1 October 2018. After this date it will be a criminal offence to carry out letting agency work if you aren’t on the register or you have not applied to join. If you’re convicted, you could face a fine of up to £50,000, up to 6 months imprisonment or both.”
What counts as “letting agency work”?
- Letting agency work generally means either carrying out work for a private landlord who wants to let their property to a tenant or managing a property which is either rented out to a tenant or is going to be.
- Often it will be perfectly obvious whether or not work counts as “letting agency work”. But there is a fairly elaborate definition of the term “letting agency work” in the legislation (section 61 Housing (Scotland) Act 2014) so it will not always be that obvious.
- The focus of this note is on those situations which might perhaps appear to count as “letting agency work” but should not generally be so in terms of the legislative definition of that phrase. If not, then of course, there’s no need to register.
If you own and manage your own properties
- You don’t need to register if you only manage properties you own.
If you’ve set up a company to own your properties
- If you’ve set up a company to own your properties you are unlikely to need to register if (1) you carry out the letting and management of your company’s properties in your role as a director or employee of the company, and (2) you don’t let or manage properties owned by another private landlord.
If you manage properties for a family member
- Whether you need to register will depend on the precise circumstances of the arrangements you have in place.
- But, if you’re helping with the letting and management of a property that is owned by a family member, you won’t usually be expected to register if (1) you’re making no money from it, (2) it isn’t part of your business and (3) you only occasionally help out.
If you’re managing a family member’s property under a power of attorney
- You don’t need to register in this situation.
If a solicitor simply prepares leases for clients
- The definition of “letting agency work” is to be interpreted in the context of the legislation as a whole (the Housing (Scotland) Act 2014).
- That definition does not include the case where a solicitor simply prepares a lease. In that situation, it is not necessary to register.
- If a solicitor does more than that it might then count as “letting agency work” in which case there would be a requirement to register.
If you only let and manage holiday lets
- Where you only let out and manage holiday lets you will not be expected to register.
- Finally, a flavour of the training requirements (which need to be noted on the Register) can be got from the Scottish Government Policy Note:
“The policy intention is for people who direct, or are in charge of, an organisation’s letting agency work to have undertaken the prescribed training for an applicant to be admitted to the register of letting agents. .. The regulations therefore require training to have been undertaken by the most senior person within the organisation, unless they are not involved in operational procedures and processes day to day; as well as by those who oversee the business’s letting agency work i.e. they are in charge of managing and supervising letting agency work.”
Note: This material is for information purposes only and does not constitute any form of advice or recommendation by us. You should not rely upon it in making any decisions or taking or refraining from taking any action. If you would like us to advise you on any of the matters covered in this material, please contact Euan David: firstname.lastname@example.org