Private residential tenancies
Any new tenancy starting on or after 1 December 2017 will be a private residential tenancy as long as:
- the property is let to a tenant as a separate dwelling. A property can still be considered a separate dwelling even if some of the core facilities are shared with other tenants. For example, if a tenant rents only a bedroom in a flat, but has a right to use a shared bathroom and kitchen, the property will be treated as a separate dwelling because the tenant has access to the range of facilities required for it to be regarded as a separate dwelling
- the tenant lives in it as their only or main home
- the tenancy isn't excluded under schedule 1 of the Act
Your tenant will have the protections of a private residential tenancy, even if you give them a tenancy agreement for any other type of tenancy.
You must provide your tenant with written tenancy terms and the relevant set of notes
You must give your tenant a written copy of all the terms of their tenancy and either the 'Easy-read notes for the Scottish Government model tenancy agreement' or the 'Private Residential Tenancy Statutory Terms Supporting Notes'. This may be in the form of electronic documents.
If it's a new tenant, you have to give them these documents before the end of the day on which the tenancy starts.
If the tenant already lives in the property under a different type of agreement, you have to give them these documents within 28 days of the tenancy becoming a private residential tenancy. For example, if your tenant is initially using the let property as their second home during the week while working away from their main home, they are likely to have a common law tenancy as the let property is not their only or principal home. If the let property later becomes their only or principal home, they would have all the protections of a private residential tenancy from the day their circumstances changed and you must give them the written terms of their private residential tenancy and notes within 28 days of that change.
If the terms of the tenancy change after it's started, you must give your tenant a document explaining the updated terms of the tenancy within 28 days of the change coming into effect. For example, if the written terms of the tenancy state that pets are not permitted in the let property and you subsequently agree that your tenant can keep a dog, this would be a change to a term of the tenancy and you would be required to provide your tenant with a document outlining this change.
You can use the Scottish Government's Model Private Residential Tenancy Agreement online tool to provide your tenant with the written terms of their tenancy. The model agreement contains mandatory and discretionary tenancy terms and the required easy-to-read notes which outline the tenancy terms in plain language. It's a simple, convenient, online tool which will help you meet your legal obligation to provide your tenant with all the written terms of their tenancy and the relevant notes. It ensures that your rights and responsibilities and your tenant's are properly covered and will save you time and money.
Because the new tenancy is not subject to the Requirements of Writing (Scotland) Act 1995, you and your tenant can agree to 'sign' the tenancy agreement simply by typing your names in the electronic document and sending it by email. You and your tenant can still sign a paper copy of the tenancy agreement if you prefer to do this instead.
In cases where you have an agent representing you, that agent can sign on your behalf, as long as this is permitted under the terms of the contract between you and the agent.
What notes must you give your tenant?
By law, you must provide your tenant with either the 'Easy read notes for the Scottish Government model private residential tenancy agreement' or the 'Private Residential Tenancy Statutory Terms Supporting Notes'. These notes will help them to understand their rights and responsibilities during the tenancy.
If you give your tenant the Scottish Government Model Private Residential Tenancy Agreement, you must also give them the 'Easy read notes for the Scottish Government model private residential tenancy agreement'. These notes explain in plain language all the standard clauses in the tenancy agreement.
If you use the Scottish Government Model Private Residential Tenancy Agreement online tool, the notes you must give to your tenant will be automatically provided. If you do not use the online tool to customise the Scottish Government Model Private Residential Tenancy Agreement, you will have to download the notes separately.
If you do not use the Scottish Government Model Private Residential Tenancy Agreement online tool or pdf version, you must give your tenant a copy of the 'Private Residential Tenancy Statutory Terms Supporting Notes'. This will give them information in plain language about the nine tenancy terms which the law requires you to include in any private residential tenancy agreement you use and other essential housing information that they need to know.
In order to comply with obligations under the General Data Protection Regulation (GDPR) and to advise tenants of their rights, all landlords also need to issue their tenants with a privacy notice.
First-tier Tribunal for Scotland (Housing and Property Chamber) (‘the First-tier Tribunal’)
Your tenant can make an application to the First-tier Tribunal if you don't give them:
- a written copy of all the terms of their tenancy
- the correct set of notes to accompany their written tenancy terms
- a document explaining any updated terms of their tenancy within 28 days of the change
Before your tenant can apply to the Tribunal, they have to give you 28 days' notice of their intention to make a referral using a certain notice. If you provide your tenant with all of the missing information before the 28-day notice period expires, your tenant will be unable to make an application to the Tribunal for the missing information.
The notice period begins on the later of:
- the day you receive the notice from your tenant
- the day after the deadline by which you should have given your tenant the information
If the First-tier Tribunal agrees with your tenant, it may order you to pay up to:
- three months' rent if you haven't provided tenancy terms or haven't provided the correct notes relating to their tenancy terms
- six months' rent if you haven't provided both.
If you aren't a registered landlord
If the First-tier Tribunal discovers that you're unregistered, they have to report it to the local council for the area the property is located in. You are registered if you are entered into the Scottish Landlord Register prepared and maintained by the local council for the purposes of Part 8 of the Antisocial Behaviour etc. (Scotland) Act 2004.
The Tribunal will have to pass your name, your address and the address of the let property to the local council so they can investigate it.
Renting out property without being registered with the council is a criminal offence and you can be served with a Rent Penalty Notice (which prevents you from charging your tenant rent) or fined up to £50,000 if found guilty.
You and your tenant can agree to communicate by email on all matters relating to the tenancy. This would include important notices, such as notices to tell the tenant that you are putting their rent up, or that you are evicting them.
It is important that you and your tenant both consider whether email is the most suitable way to communicate this information. If a tenant does not use email regularly, they might not see important notices when you send them. If a tenant doesn't want to receive notices and other communications from you by email, they do not have to agree to this.
Your tenant's responsibilities
Under the 2016 Act, your tenant has new responsibilities around access for repairs and people living with them.
Access for repairs
If you need to access the property you should always give your tenant at least 48 hours' notice.
Your tenant must give you reasonable access to the property. This includes letting you:
- carry out work when you need to or are allowed to
- inspect the property to see if any work is needed
- carry out a valuation of the property
You don't have to give 48 hours' notice if you need access to the let property urgently to carry out work or assess what work you are obliged or entitled to carry out. You should not enter the property without the tenant's consent, except in an emergency.
Residents living in the property
Unless you agree it in writing, your tenant must not:
- sublet the property (rent it out to someone else)
- take in a lodger
- give up their tenancy to someone else
Your tenant may have other people living with them in the property – like a partner, family member or carer.
They have to tell you in writing about any person who is:
- aged 16 or over
- not a joint tenant
- living with them in the property as their only or main home
The tenant must tell you their name and what their relationship is to the tenant. They also have to let you know if that person moves out.