All landlords who let private residential property in Scotland must apply to register, unless they are covered by an exemption. They must register themselves and any properties they own which are let. They must also declare any agent they use to manage their property. Agents are not obliged to register in their own right, but must provide information for the fit and proper test and pay the relevant fee.
Can someone register who does not own property?
Yes. Agents can register in their own right, so that they can market themselves to clients as fit and proper. Prospective landlords can also register before purchasing any property. They will then be assured that the local authority has found them fit and proper, before they spend money on a property.
Who is exempt?
Exemptions apply to properties rather than to people. If all of a landlord's properties are covered by one or more of the exemptions, he or she does not need to register. If some of his or her properties are exempt, the landlord must register and must list all the non-exempt properties. A property is exempt from registration if it is:
- the only or main residence of the landlord (if there are more than 2 unrelated lodgers an HMO licence will be required)
- let to members of the landlord's family only (as defined by s.108 of the Housing ( Scotland ) Act 2001)
- used for holiday lets only
- used to provide certain types of service regulated by the Care Commission
- subject to a control order under section 178 of the Housing (Scotland) Act 1987
- occupied by virtue of an agricultural tenancy, and occupied by the tenant farmer
- on a croft (croft houses cannot be sub-let)
- owned by a religious organisation and occupied by a leader or preacher of that faith
- used by a religious order
- occupied by virtue of a liferent
- held by an executor, for six months from the date of the previous owner's death
- possessed by a heritable creditor, for six months from the date of possession.
- In the hands of a person acting as an insolvency practitioner and has been so for a period not exceeding 6 months
What about landlords who already hold an HMO (House in Multiple Occupation) licence or who are members of an accreditation scheme?
HMO owners and accredited landlords must also appear on the register. This is because one of the aims of registration is to produce a comprehensive picture of private rented property in Scotland.
Properties subject to an HMO licence also have to be in included on the register, but licensed landlords will usually be entered on the register by the licensing authority. Owners must declare any additional non-HMO properties they own, additionally they should ensure that the information is kept up-to-date
Accredited landlords may be registered automatically with no fee if their accreditation scheme involves a fit and proper person test which is compatible with the test used for registration. Each local authority decides whether any accreditation schemes in its area are suitable for automatic passporting
What about landlords who don't live in Scotland?
They must also apply to register. The legislation applies to anyone who owns let property in Scotland , regardless of whether they are resident in Scotland or not. If the landlord lives a long way from the property, whether in Scotland or elsewhere, the local authority may require them to appoint an agent to ensure effective management.
What about casual or non-commercial lettings, for example if no rent is charged, or if the letting is only for a few months, or while the owner is working abroad?
All of these must be registered. Anyone who allows someone else to live in the property they own must register, unless the property is covered by an exemption. If you are unsure about your particular circumstances, contact the local authority for advice.
If a property is jointly owned, who has to register it?
All joint owners must register. Please note that if one joint owner shares the property with tenants, and other owners live elsewhere, the property is not exempt under the resident landlord rule.
What about tied housing/accommodation provided for employees?
Any housing provided by an employer has to be registered, including tied cottages, staff hostels, caretaker or warden's flats etc. Where tied cottages are let by a tenant farmer, the landowner must register as the owner and the tenant farmer should register as the agent. Only the house occupied by the tenant farmer is exempt by virtue of a tenancy under the Agricultural Holdings Acts.
Who has to register if the house is sub-let?
If a property is rented and is not exempt, the owner of the property always has to register, because he or she has ultimate control of the property. Where the house is sub-let, the tenant should be registered as the owner's agent. If there is a chain of leases and agency arrangements, the owner must register and the person who deals directly with the tenant who lives in the house should be registered as the agent.
Why not just register one lead person, either one owner or the agent, for each property?
Owners have ultimate responsibility for, and control of, the properties they own. Even if they use an agent, or the property is sub-let, the owner has the power to dismiss the agent or terminate the top-level lease. Registration is therefore geared around owners rather than agents. All joint owners of a property must register because each has the opportunity to control the situation. But where agents are used, they generally have the key day-to-day contact with tenants, so the local authority must be satisfied that they too are fit and proper, and that the arrangement they have with the landlord will lead to letting being carried on in a fit and proper way.
Why are resident landlords and holiday lets exempt from registration ?
These issues were both consulted on. Arguments were made that they should be exempt, and it was felt in both cases that there was not currently enough evidence to support including them. In the case of resident landlords, it was felt that the need to register might discourage people who currently take lodgers who need some support or are at risk of homelessness. The standards of a property are often better if the landlord actually lives there, and antisocial behaviour is less likely to occur, or more likely to be dealt with quickly, if the landlord is on site. As regards holiday lets, it was considered that the nature of the service offered would require a different framework of standards and obligations against which to test 'fit and proper'. There was reluctance to go down a line which could see landlord registration becoming a sort of approved holiday accommodation scheme. Further evidence will be sought on whether particular problems arise from the exclusion of these categories of let from registration and it will be possible to regulate to include them in the future.