UK: Bringing Down The House

Last Updated: 23 March 2016
Article by Gillian Craig

You might be thinking demolition was afoot in the Scottish legal world. In fact, a shake-up of the way in which the lettings of privately owned houses and flats are regulated is about to occur.

The Scottish Government has just completed the second stage review of the Private Housing (Tenancies) (Scotland) Bill. This proposed new law promises to streamline the current minefield of legislation in this area and make it easier for landlords and tenants to understand their positions. It will introduce a new kind of private tenancy that is intended, over the course of time, to replace the short assured tenancy.

What is a Private Residential Tenancy?

A Private Residential Tenancy is a tenancy to an individual or individuals of a property, the sole purpose of which is to provide that person or persons with a home. This is helpful but it can be said that an assured tenancy, as defined under the current law, is the same thing.

The new definition is added to by a list of all of the tenancies that cannot be considered to be a Private Residential Tenancy. These include all of those leases currently accepted as falling into this category, such as leases of shops, agricultural land to name a few. However, an important inclusion in this list is those residential tenancies where there is a live-in landlord; these types of tenancies are not covered by the new bill. This list, as it stands, is not exhaustive and the Scottish Government can add to it at any time.

The Terms of the Tenancy

The bill provides that the Scottish Government may enshrine particular tenancy conditions of such tenancy agreements in law. At this time there are no proposed regulations to do this but it will be something that landlords and tenants will have to be aware of in future.

Landlords will now also be under a statutory duty to set out the terms of the Private Residential Tenancy in writing to the tenant. Most social landlords will have made a habit of doing so already, as it protects their own interests as well as those of the tenant.

In addition, the Scottish Government may issue regulations that direct landlords to provide specific information to the tenant about the tenancy. It is likely that this information will have to explain to tenants how they, and their landlord, can enforce their rights under the tenancy. This is not surprising as landlords currently have to provide such guidance anyway.

Referral to the First-Tier Tribunal

Under separate legislation to that being considered, all disputes between residential landlords and tenants will be transferred from the Sheriff Court to the Scottish Tribunals. It is envisaged that a specific Housing Tribunal will be set up to deal with such disputes.

The First-Tier Tribunal will have the power to draw up the terms of a tenancy where needed; sanction a landlord for failure to provide required information to a tenant; deal with disputes concerning rent reviews and set new rents if required; and deal with applications for eviction orders by a landlord.

Rent Reviews

In a similar way to that under the already existing legislation, the landlord may increase the rent payable by a tenant by serving a notice on the tenant. This cannot be done more than once in a 12-month period and sufficient notice must be given to the tenant.

The tenant has the right to refer the increase in rent to a rent officer (a public official) for adjudication to determine if it is fair. If the tenant does not agree with the decision following adjudication there is a further port of appeal to the First-Tier Tribunal. However, the decision of the First-Tier Tribunal will be final.

Rent Pressure Zones

These are a new addition to Scots law. The current proposals, if enacted, will allow a local authority to apply to the Scottish Government to designate an area as being a Rent Pressure Zone. If such an application is granted it will mean that the rent payable under any Private Residential Tenancy cannot increase by more than 1% above the consumer price index.

A comparison can be made to the rent control model that is operated in some cities in the United States. However, it is stated that the Scottish Government cannot designate an area as being a Rent Pressure Zone without them having first received an application from the relevant local authority.

Termination

The terms of the Bill, at present, are a replication of the existing law relating to Short Assured Tenancies. A tenant or landlord may give notice to the other, indicating a specified time frame and end date, that the Private Residential Tenancy is to come to an end. As is currently the case, such a notice should be served at the same time as a Notice to Quit. In the landlord's case there are specific grounds for issuing a notice under the Bill; these include, but are not limited to, the non-payment of rent by the tenant, the landlord wanting to sell the property, and the tenant's behaviour may be considered to be antisocial.

An important change however is that all of the grounds for eviction appear to be mandatory. Therefore, if the First-Tier Tribunal finds that the ground on which eviction is sought does exist then they must grant an order evicting the tenant.

In addition, sub-tenants are afforded the same protection as the tenant. This could be problematic for landlords but the easiest way to avoid such complication is to prohibit the subletting of a property within the Private Residential Tenancy agreement. In such cases the sub-tenant will have no protection.

A tenant who believes that an eviction order has been wrongfully granted or who has been wrongfully evicted will have the opportunity to apply to the First Tier Tribunal to overturn that decision should they choose to do so.

Other changes and a look ahead

The notice served by a landlord on a tenant indicating they would like the property back, or a notice served by the tenant to say that they are leaving the property, is currently known as Notice to Quit. The new act changes the name to a Notice to Leave. However, there is little change in how such a notice will operate.

Provisions have also been made to deal with circumstances where a tenant has died. A deceased tenant will be deemed to have left the tenancy to their partner, be that their spouse, civil partner or cohabitee.

On the other hand, the executor of a person who was a tenant living on their own, will be obligated to terminate the tenancy.

"Promises to streamline" you said? The bill has now been formalised and will shortly take its place on the statute books. Much of the current law will remain in place until the use of the Short Assured Tenancy is phased out. It looks as though landlords, tenants and their solicitors are going to be jumping between pieces of legislation for the time being.

© MacRoberts 2016

Disclaimer

The material contained in this article is of the nature of general comment only and does not give advice on any particular matter. Recipients should not act on the basis of the information in this e-update without taking appropriate professional advice upon their own particular circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.