Now and in the future
The 2004 Act, does not provide a clear definition of agent. However, section 88(1)(b) refers to the registered person appointing a person to act for them in relation to a lease or occupancy agreement by virtue of which an unconnected person may use the house as a dwelling. Such a person may include professional letting agents, solicitors, friends or relatives who look after the property, arrange repairs, collects rent, or a person with power of attorney.
Landlords must declare any agent they use and the agent must be assessed as 'fit and proper' by the appropriate local authority. Due diligence should be undertaken whilst making this assessment. Agents may choose to voluntarily register in their own right with a local authority, but it is not compulsory.
The Scottish Government is introducing a regulatory framework for letting agents as provided for by the Housing (Scotland) Act 2014. Registration, monitoring and compliance and enforcement will be carried out by the Scottish Government. Regulation will include:
- mandatory registration with an associated fit and proper person test and training requirements that must be met;
- a statutory code of practice that letting agents must comply with;
- a new route of redress to the specialist housing Tribunal where an agent hasn't complied with the code: and
- powers for Scottish Ministers to obtain information and of inspection to monitor compliance and for effective enforcement.
These measures are due to be in place by early 2018. These requirements will apply to those carrying out letting agency work as defined by section 61 of the Housing (Scotland) Act 2014. It will be an offence for a person who is not a registered letting agent to carry out letting agency work.
Agents who do not fall within the definition of the 2014 Act will continue to be covered by landlord registration, for example those with power of attorney who are not acting on behalf of the landlord as a business.
The Scottish Government is currently working to implement letting agent regulation, which includes looking at how it should interact with landlord registration in the future to tackle poor practice and standards within the PRS. Sharing information will be an important aspect of this and it is therefore the Scottish Government's intention to work with local authorities to develop information sharing protocols to facilitate this.
(This section will be updated when the registration of letting agents commences.)
Email: Gary Mitchell, Gary.firstname.lastname@example.org
Phone: 0300 244 4000 – Central Enquiry Unit
The Scottish Government
St Andrew's House