Tenancy Agreement FAQ - United Kingdom-Scotland


A residential tenancy agreement is a legally binding contract made between a landlord and tenant. The tenancy agreement gives a tenant the right to exclusive use and enjoyment of the described residential property in exchange for money paid to the landlord. Additionally, the tenancy agreement outlines the rights and responsibilities of both the landlord and tenant during the tenancy agreement term. LawDepot provides a written tenancy agreement.
General
Why isn't an oral tenancy agreement sufficient?

The problem with oral tenancy agreements is that they can be difficult to enforce. If a dispute arose, a court would have to hear evidence and decide whose version of the truth to accept. If there is a written agreement, courts will generally be obligated to uphold the terms of the written agreement even if they don't agree with them.

Is a formal tenancy agreement between the tenant and the landlord required?

Yes. The landlord must complete the following steps:

1. draw up a written document setting out the terms of the short assured tenancy;

2. give a copy of the document to the tenant; properly executed by the tenant and the landlord (e.g. signed before a witness); and

3. not charge the tenant anything for the document.

A tenant who does not have a written document or who believes his written document does not fairly reflect the terms of his tenancy can apply to the sheriff to have a document drawn up or to have the existing one adjusted.

What is addressed in a residential tenancy agreement?

A residential tenancy agreement typically addresses the following:

  • the type of property being let;
  • the address of the property being let;
  • the term of the tenancy and whether the tenancy is fixed or periodic;
  • the amount of rent payable, how often and when the rent should be paid; and
  • the provisions of any security/damage deposit.

In addition, a residential tenancy agreement may also identify the following:

  • taxes that are payable by the tenant;
  • landlord improvements and signing incentives;
  • tenant improvements and signing incentives;
  • landlord and tenant repairing obligations;
  • who will pay for what utilities;
  • whether the tenant can assign or sublet the property;
  • notice provisions for termination of the tenancy; and
  • insurance provisions.
What makes a residential tenancy agreement different from a commercial tenancy agreement?

A residential tenancy agreement is a tenancy agreement for your home. Governments have recognised the sanctity of the home and have extended increased protections to tenants by enacting laws that provide a minimum set of rights for tenants. Tenants cannot contract out of the rights contained in these laws.



Short Assured Tenancies
What is an "assured tenancy"?

The letting of a house/flat (or part of a house/flat) made after 2 January 1989 is normally an assured tenancy as long as it is the tenant's only or principal home.

What is a "short assured tenancy"?

A short assured tenancy is a special kind of assured tenancy. It allows the landlord to repossess the let property. It allows the tenant to apply to a rent assessment committee for a rent determination. Short assured tenancies must be for at least 6 months. A landlord must provide the tenant with a Notice AT5 stating that the tenancy being offered is a short assured tenancy. The AT5 must be given before any tenancy agreement is signed. If at the end of one short assured tenancy the landlord offers the same tenant another short assured tenancy of the same property, another notice AT5 does not need to be given. Also, the renewed tenancy may be for less than 6 months.

What cannot be a short assured tenancy?

The following cannot be short assured tenancies:

  • a tenancy entered into or resulting from a contract made before 2 January 1989;
  • a tenancy with no rent or a rent of less than £6 a week or its monthly or yearly equivalent;
  • a tenancy of a house which is also a shop or is licensed to sell alcohol for consumption on the premises;
  • a house which is let together with more than 2 acres of agricultural land;
  • a tenancy of a house which forms part of an agricultural holding and the house is occupied by the person responsible for farming the holding;
  • a letting by a university, central institution, or other specified educational institution for a student pursuing a course of study there or at another specified educational institution;
  • a letting for a holiday;
  • a tenancy where the landlord is a 'resident landlord';
  • a letting by the Crown or a government department;
  • a letting by a local authority, Scottish Homes or a co-operative housing association;
  • a tenancy under a shared ownership agreement; or
  • a tenancy on a temporary basis for homeless persons.
How do short assured tenancies provide security of tenure?

Short assured tenancies provide security of tenure during the agreed period of the let. During that time, a tenant cannot be evicted as long as he does not break any of the terms or conditions of the tenancy agreement. At the end of the agreed period, the landlord has the right to apply for repossession if he/she so chooses. The tenant, however can still stay on until the court grants the landlord an order for possession.

How long can a short assured tenancy last?

A short assured tenancy lasts for a minimum of 6 months. The landlord and tenant can agree to have the tenancy last for a set term (e.g. 6 months or 12 months). Once the initial period ends the landlord has the right to apply for repossession or the landlord and tenant have the option of renewing the tenancy. LawDepot’s tenancy agreement may not be suitable for terms exceeding 3 years. You should consult a solicitor if you require a term longer than 3 years.



The Parties
Who are the parties to the tenancy agreement?

The parties to a tenancy agreement are the landlord and the tenant. The landlord owns the property and allows the tenant to use the property in exchange for monetary payments called rent.

What is a "resident landlord"?

In general, resident landlords are landlords whose only or main home is in the same building as the house or rooms which the tenant is renting.

What are the landlord's obligations?

The landlord's obligations are defined by the terms and conditions contained in the tenancy agreement and the laws specific to where the property is located. The most important obligation the landlord has is to allow the tenant peaceful enjoyment of the property.

What are the tenant's obligations?

The tenant's obligations are defined by this tenancy agreement and the laws specific to where the property is located. The most important obligations of the tenant are to pay rent on time and to not cause damage to the premises.

What happens if I breach a term of the tenancy agreement?

If you breach a term of the tenancy agreement you are responsible for correcting it. If you are the tenant, this may involve you paying money to fix any problems caused by yourself or your guests. If you do not voluntarily pay to correct the breach you can be sued for damages sustained as a result of the breach or even possibly evicted by the landlord.

What is a guarantor or surety?

A guarantor or surety is a person who agrees to pay any losses directly to the landlord should the tenant be unable to pay the rent, or otherwise breach the tenancy agreement.


The Premises
Is the property an HMO?

If the property is shared by three or more tenants who are not members of the same family, then the property may be classified as a House in Multiple Occupation (HMO). If you are a landlord, you may have to get a HMO license in accordance with Civic Government (Scotland) Act 1982. If you are not licensed or if you have any concerns please contact a local solicitor. Note: Family members include partners, same sex partners, parents, grandparents, children, stepchildren, foster children and adopted children, grandchildren, brothers, sisters, uncles, aunts, nephews and nieces.

Who can live in the premises?

Only tenants and people listed as occupants may reside in the premises. The parties must agree to change the people listed as occupants or tenants. Children born or adopted while the tenant lives in the premises are automatically added to the tenancy agreement as occupants. Also, there may be laws which restrict the number of tenants/occupants in the premises if that number violates local health or safety standards for housing. Health and safety standards are typically expressed as 1 person per X square feet. The standard varies from jurisdiction to jurisdiction so if you are concerned, check with your local housing authority.


Tenancy Agreement Term
Which tenancy agreement term should I use?

LawDepot allows you to choose from several different types of tenancy agreement terms.

Fixed End Date

A tenancy agreement with a fixed end date gives certainty of term for both the landlord and the tenant. It specifies the exact day the tenancy will end. The advantage here is that neither party has to give notice to terminate the tenancy agreement; it simply ends on the specified date. In a fixed end date tenancy agreement the landlord cannot increase the rent, or change any other terms of the tenancy agreement unless he specifically reserves the right in the agreement and the tenant agrees to the changes. If the tenant remains past the specified date the landlord can either accept rental payments and have the tenancy agreement continue as a month-to-month tenancy with the same rules as the expired fixed end date tenancy agreement, sign a new tenancy agreement, or start eviction proceedings against the tenant.

Fixed Number of Weeks/Months/Years

A tenancy agreement for a fixed number of weeks/months/years gives a start date for the tenancy agreement and the number of weeks/months/years that the tenancy agreement will run. (for example, the tenancy agreement could start on 1 September 2005 and then continue for a period of 18 weeks/months/years). The advantage here is that neither party has to give notice to terminate the tenancy agreement; it simply ends on the specified number of weeks/months/years. In a fixed term tenancy agreement, the landlord cannot increase the rent or change any other terms of the tenancy agreement unless he specifically reserves the right in the agreement, and the tenant agrees to the changes. At the end of the 18 weeks/months/years, the landlord can either accept rental payments and have the tenancy agreement continue as a weekly/monthly/yearly tenancy with the same rules as the expired fixed end date tenancy agreement, sign a new tenancy agreement, or start eviction proceedings against the tenant.

Periodic

A weekly/monthly/yearly tenancy agreement with automatic renewal (a periodic tenancy) will continue so long as neither party wishes to terminate the tenancy agreement. To terminate the tenancy agreement the landlord and tenant must give notice of their intention to leave as specified by statute. A landlord can raise the rent, or change the terms of the tenancy agreement in these types of agreements by providing proper notice as required by statute. At the end of the notice period the tenant must move out or the landlord can start eviction proceedings against them.


Notice
How much notice do I need to give to terminate a tenancy?

Usually, under a fixed term tenancy, neither a landlord nor a tenant can give notice to terminate until the term has expired (unless one of the parties has made a substantive breach of the agreement). For periodic tenancies, there is a legal minimum notice required by most jurisdictions. The tenancy agreement can specify a period longer than the legal minimum. The tenancy agreement cannot specify a period shorter than the legal minimum. If it does, the legal minimum notice will be implied into the tenancy agreement.

What is notice to enter?

A landlord does not have the right to enter the let premises unless there is an emergency, for example a fire or gas leak, or he/she gives the tenant proper notice as defined by statute. So long as the proper notice is given, a tenant cannot refuse entry to a landlord.


Security Deposit
What is a security deposit?

A security deposit is a sum of money the tenant pays to the landlord to guarantee that the tenant will fulfill all obligations under the tenancy agreement. The landlord holds the security deposit for the term of the tenancy agreement to ensure that the tenant does not default on the terms of the tenancy agreement or otherwise damage the property. Should the tenant damage the property (normal “wear and tear” excluded) or if the tenant has not paid rent, the landlord is entitled to recoup the debt from the security deposit. Usually the tenant must provide the landlord with the security deposit at the start of the tenancy agreement. At the end of the term, the tenant will receive the deposit back minus any deductions for repairs/restoration.

How much can the security deposit be?

This is governed by statute and may differ from jurisdiction to jurisdiction. The amount that can be charged is typically not more than the amount of two months rent for an unfurnished property, or up to three months rent for a furnished property.

When can the landlord deduct from the security deposit?

The landlord can deduct from the security deposit when the tenancy ends and the tenant owes the landlord money for either unpaid rent or damage to the premises. The landlord cannot deduct for reasonable wear and tear on the premises (i.e. wear and tear that occurs just from living in the premises). The landlord can deduct for stains on the carpet or countertops, large holes in the wall, and missing appliances and other such things that are beyond reasonable wear and tear.

What is an inspection report?

Prior to moving in the tenant and the landlord should walk through the premises and write down any existing damage. This written account is called an inspection report. The landlord and tenant should both get a copy of this report.

Why do I need an inspection report?

An inspection report will help prove what damage was or was not caused by the tenant for the purpose of deducting any damages from the security deposit.

Miscellaneous
Why do tenants need insurance; doesn't the landlord already have it?

While the landlord typically has insurance, it only covers his/her property and liabilities. If the tenant wants coverage for his/her personal belongings or negligence, the tenant will need renter's insurance. The tenant should discuss what type of insurance he/she wants with an insurance agent.

What is an assignment and how does it differ from a subletting?

Assignments and sublettings both occur when the tenant gives his/her rights under the tenancy agreement to a third party. The landlord typically cannot block an assignment or subletting without a valid reason. An assignment occurs when the tenant gives to a third party all of his/her remaining rights under a tenancy agreement for the entire term of the tenancy agreement. The original tenant no longer has any rights in or claims to the property. If a tenant assigns property, he can no longer be sued by the landlord, and cannot sue the landlord as all his/her rights are transferred to the third party. In a subletting the tenant can transfer a portion of the let space (e.g. a room in a house) or a portion of the tenancy (e.g. for 5 of the remaining 6 months of the tenancy agreement) to a third party. The original tenant retains his/her rights in the property. The original tenant can still sue and be sued by the landlord for tenancy agreement violations.

What are signing incentives?

Signing incentives are bonuses the landlord gives to the tenant, typically for either signing a tenancy agreement or signing a fixed term tenancy agreement. They may include free month's rent or a rent decrease for the months of the fixed term tenancy. If the tenant breaches the tenancy agreement he/she typically has to pay back these incentives.

When is a rent book required?

The landlord must provide the tenant with a rent book if the rent is payable weekly. If the landlord of a tenant who pays rent weekly does not supply a rent book he or she is liable to a fine of up to £2,500. Rent books must contain the following:

  • the landlord’s name and address;
  • the amount of rent payable; and
  • a summary of the basic rights that a tenant has under the Housing (Scotland) Act 1988 as specified in the regulations.


 

Ready to create a free Tenancy Agreement?
Know someone who could benefit from legal FAQs? Pass this along:
back to top