UK: Private Residential Tenancies: Your Essential Guide To The New Regime

Last Updated: 9 January 2018
Article by Ann Stewart, Lynn Simpson and Emma De Sailly

Landlords letting a residential property under a new lease are now subject to a new letting regime in Scotland. The 'private residential tenancy' has been created by the Private Housing (Tenancies) (Scotland) Act 2016, and from 1 December 2017, all new tenancies of residential property (that is not exempt) to individuals must be a private residential tenancy (PRT).

The PRT will replace assured tenancies and short assured tenancies. There is no equivalent to the short assured tenancy under the 2016 Act, and in fact the new tenancy will be open-ended. It will last until a tenant wishes to leave the let property, or a landlord uses one (or more) of 18 grounds for eviction (please see Table C).

Any existing short assured or assured tenancy (and also statutory and protected tenancies) will continue until either the tenant or the landlord brings it to an end by serving notice to quit the let property. Any short assured tenancy that is renewing on a rolling basis can continue until either the landlord or the tenant bring it to an end or can be renewed at the expiry date by the same parties.

A landlord and tenant under an assured or short assured tenancy can agree to convert it to a PRT, but there is no compulsion to do so, nor any automatic conversion, and it is difficult to see how conversion would be attractive to either landlords or tenants.

What is a PRT?

A residential tenancy will be a PRT if:

  • the property is let to a person as a separate dwelling (this includes lets where there are shared facilities);
  • the tenant lives in the property as their main or only home;
  • the rent payable is more than £6 per week, not including any services, repairs, maintenance or insurance;
  • the property is not an excluded premises (please see Table A);

If the tenancy meets these requirements, it will be a PRT; if it does not, and is not an excluded property, it may fall into

TABLE A

The tenancy will not be a PRT if:

  • it is a shop, licensed premises, or property which includes 2 or more acres of agricultural land;
  • it is an agricultural tenancy (including a 1991 Act tenancy, an SLDT, LDT, MLDT or a repairing tenancy) and is occupied by the person responsible for the control of the farming of the let property;
  • it is a student let granted while the tenant is a student AND the landlord is a university, college or other further education body;
  • it is a student let where the landlord is an institutional provider of student accommodation (meaning they can let other properties in the same building or complex, which has at least 30 bedrooms) and other properties in that building or complex are predominantly used for student housing. Planning permission for the building or complex must have required that it would be used predominantly for housing students;
  • it is let for the purposes of a holiday;
  • the landlord also lives there;
  • the landlord is either a registered social landlord, a local authority, a co-operative housing association, the Scottish Police Authority, the Secretary of State for Defence, or Scottish Water;
  • it is granted on a temporary basis to provide accommodation to homeless people;
  • it is for less than 6 months and granted in connection with the supervision and care of someone on probation or released from prison;
  • the tenant is an asylum seeker or a displaced person; or
  • it is a 'shared ownership agreement'.

another category such as a contractual tenancy, holiday let or licence to occupy.

How to create a PRT

There must be a written agreement between the landlord and the tenant, but there is no longer any requirement (as there was with short assured tenancies) to issue a pre-tenancy notice.

Landlords must give tenants written terms and conditions, which can be in electronic form, before the tenancy starts (or within 28 days of an existing assured tenancy converting to a PRT or terms of the tenancy changing). The Government has produced a style Model Tenancy Agreement, but the landlord can use any other form of tenancy agreement it chooses. If using the Model Tenancy Agreement:

  • it contains mandatory clauses, which must be used;
  • other clauses are optional;
  • additional clauses may be added;
  • it must be accompanied by explanatory 'Easy read' notes produced by the Government. If using another style of tenancy agreement:
  • it must contain at least the prescribed statutory terms (please see Table B);
  • it must be accompanied by a copy of the Government's 'Private Residential Tenancy Statutory Terms Supporting Notes'.

The terms of the Model Tenancy Agreement are suitable for typical urban tenancies. For PRTs for more rural locations, the model agreement will need to be adapted to deal with issues such as private access rights, septic tanks and private water supplies.

The Easy-read notes or the Supporting notes replace the Tenants Information Pack under the assured and short assured tenancy regime.

To view the full article please click here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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