Residential Leases

At Mitchells Roberton we have expert knowledge of residential tenancies and can advise on the content of tenancies for those tenants seeking advice on private sector lets before they sign. Sometimes clauses in leases are difficult to understand and we can put this into plain language for you.

We also act for landlords and we can prepare the lease agreements and all the ancillary documentation. Sometimes landlords have to take steps to remove tenants in arrears of rent or who are in breach of the lease terms. This is a complex area of law and our court department is well placed to assist landlords.

Frequently asked Questions by Private Tenants

Do I need a written tenancy agreement?

When you move into a private rented property your landlord should ask you to sign a tenancy agreement outlining the terms of your stay. This will usually be a written document but it can also be a verbal agreement. Even if you do not have a written tenancy agreement you still have rights as a tenant.

What should a tenancy agreement include?

Tenancy Agreements have to include the following:

  • Landlord details-the name of the landlord and his contact details
  • Tenant details-the tenant’s name
  • Rental address- the address of the property to be rented
  • Rent- the amount of rent to pay
  • Term-how long the lease is for (if this isn’t specified it will be assumed to be one year).

Agreements should also include:

  • The kind of tenancy being offered (for example, assured or short assured).
  • Whether the rent covers services (such as gas and electricity) or whether these are extra and who is responsible for council tax
  • When the rent should be paid and how it should be paid
  • The amount of deposit to be paid and in what circumstances it will not be returned
  • What your obligations are to repair and decorate the property
  • Whether any furniture is provided
  • What the conditions are for ending the lease: how much notice you need to give the landlord before moving out and how much notice the landlord has to give you before asking you to leave
  • Whether you are allowed to take in lodgers or sublet the property
  • Whether you are allowed to pass the tenancy onto someone else
  • Any other terms, for example whether you are allowed to keep pets etc.

What kind of tenancy will I have ?

If you rent from a private landlord you will probably have either:

  • An assured tenancy or
  • A short assured tenancy

What is an assured tenancy?

You will probably have an assured tenancy if:

  • Your tenancy started after 2 January 1989 and
  • before the tenancy started you were not given an AT5 notice stating that your tenancy is a short assured tenancy and
  • you are renting your property as a home and
  • it is your only or main home.

In an assured tenancy if you want to leave your tenancy you must give your landlord written notice.

If you want to leave before the end of your tenancy you will need to check your tenancy agreement  to see whether you can do this. If it is possible, the agreement should tell you how much notice you need to give. Even if this is not mentioned in the tenancy agreement you may be able to come to an arrangement directly with the landlord.

If you can’t reach an agreement then you will have to give notice to your landlord stating that you wish to leave when the tenancy runs out. The minimum notice you need to give (if the notice is not stated on the lease) is:

  • 28 days if your initial tenancy was for less than 4 months or
  • 40 days if your initial tenancy was for longer than 4 months

What is a short assured tenancy ?

If you rent your home from a private landlord or a letting agent then you will probably have a short assured tenancy if :

  • Your tenancy started after 2 January 1989 and
  • the place where you live is rented as a home and
  • it is your only or main home and
  • you received a special notice (an AT5) form before the tenancy started telling you that it is a short assured tenancy and
  • your tenancy is for at least 6 months.

If you want to leave and cannot come to an arrangement with your landlord the minimum notice you have to give is 40 days notice.

Our specialist property team at Mitchells Roberton can also advise you on Tenancy Deposit Schemes, Tenant Information Packs, what happens when your lease runs out, your rights of repair, rights to information, how you can get repairs done and how to find out the name and address of your landlord.

Landlords

Our knowledgeable property and court teams can also keep prospective landlords right regarding the regulations with which they now have to comply.

Registration

Nearly all landlords of residential properties must now be registered with their Local Authority under the Anti-Social Behaviour etc (Scotland) Act 2004 as amended. Failure to register is a criminal offence with a maximum fine of £50,000.

Energy Performance Certificates

Since 4 January 2009 an Energy Performance Certificate must, with few exceptions, be produced to the prospective tenant free of charge on the grant of a new lease or on the assignment of an existing lease.

Tenancy Deposit Schemes

All tenancy deposits must be lodged within 30 working days from the start of the lease with one of three Tenancy Deposit Schemes approved by the Scottish Government. It is now essential to have a clear record of the condition of a property and an inventory of the contents and their condition at the beginning of a lease, if the landlord is to have any success in claiming from a deposit.

Condition of the Property

The Housing (Scotland) Act 2006 introduced the Repairing Standard and tenants now have a right to refer a lack of repairs in houses to the Private Rented Housing Panel. In addition to the obligations contained in the Housing (Scotland )Act 2006 a landlord has to comply with the Furniture and Furnishings (Fire) (Safety) Regulations 1988 as amended. This means that any furniture in the let must reach the safety standard with regard to fire resistance. Gas and electrical Safety Certificates must be available for the tenant.

Tenancy Documentation

From the landlords point of view the best form of tenancy to enter into is a Short Assured Tenancy as this will allow a landlord to obtain vacant possession of the property at the end of the tenancy. A Short Assured Tenancy must be for a minimum period of six months and a notice must be served on the tenant prior to the let commencing, specifying that the agreement about to be entered into is a Short Assured Tenancy. Our skilful solicitors at Mitchells Roberton can help any landlord with this documentation.

Obtaining Vacant Possession

If the right procedures are followed a landlord is entitled to vacant possession of the property that has been let at the end of the period of the lease. However if the tenant does not vacate the property following  a Notice to Quit being served on the tenant at least two months before the end of the tenancy,  then a landlord must obtain a Court Order  before the tenant can be evicted. Our court team can help here.

Tenant Information Packs

A landlord now has a duty to provide a tenant with information regarding the tenancy not any later than the start of the tenancy. Receipt of the Pack should be acknowledged by the tenant.

Other Miscellaneous Matters

If the property, a landlord is leasing is subject to a mortgage the permission of the lender is required to the lease. Landlords must take care to ensure that the insurance company is fully aware that the property is being leased. Landlords should also be aware that if they are letting out their property to multiple parties the Housing (Scotland) Act 2006 imposes additional obligations on landlords which include a requirement to obtain a licence from the Local Authority.

The Private Housing (Tenancies) (Scotland) Bill introduced to the Scottish Parliament in October 2015 which may become law in Spring 2016 suggests some sweeping changes such as the removal of the automatic right for a landlord to end a residential lease at the fixed end date and the possibility that the Government may impose rent controls in high rent areas.

If we can assist in any matters relating to residential leases then please contact one of our experts.

Our experts

Alison GourleyAlison Gourley
Euan DavidEuan David
Paul NeillyPaul Neilly

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