Proposals for regulations and policy supporting the Private Housing (Tenancies) (Scotland) Act 2016: analysis of consultation responses, 1 March 2017

Analysis of responses to consultation seeking views on regulations and policy supporting the new private residential tenancy.

Section 2: Recommended Model Tenancy Agreement

In Section 2 the consultation paper moves on to questions about the proposed Recommended Model Tenancy Agreement ( MTA) which it says will:

  • State the core rights and obligations;
  • Enable extra terms to be included which are specific to the property and parties involved; and
  • Be accompanied by a legal commentary which will explain all the provisions in the agreement in plain English.

The consultation paper also notes that the MTA will be dynamic (i.e. can be completed electronically using fillable fields) and it will contain pre-written tenancy terms. It will contain two categories of clause. The first category is the core rights and obligations, which will be mandatory terms that a user cannot alter. The second category is discretionary terms that a landlord may or may not wish to include. It will be possible to add free text terms, or vary some of the pre-written discretionary terms, so long as the terms comply with the requirements of the Private Housing (Tenancies) (Scotland) Act 2016, supporting secondary legislation, Statutory Terms Regulations and other housing legislation. The MTA will also contain an easy read legal commentary on each written term, although the consultation paper notes that this section has not yet been drafted.

In Questions 25 and 26 the consultation paper asked whether the MTA is generally fit for purpose and easy to understand and then went on to ask respondents whether they had comments on 40 individual terms used in the agreement. These terms are covered at Questions 27 to 30. At Question 31 there was an opportunity to add any extra terms the respondent thought should be included as standard, while Question 32 provided a space for any additional comments on the MTA.

Do you think the proposed recommend Model Tenancy Agreement:

Question 25: Is generally fit for purpose?

Question 26: Is easy to understand?

A summary of responses to Questions 25 and 26 is set out in Table 8 below. A full breakdown of responses to each question by respondent type may be found in Annex 2.

Table 8: Do you think the proposed 'Recommended Model Tenancy Agreement:

Yes No Unsure Not answered
Question 25: Is generally fit for purpose? 42 21 4 3
Question 26: Is easily understood? 46 15 4 5

The majority of respondents thought that the MTA is generally fit for purpose and easily understood.

Comments on the Recommended Model Tenancy Agreement

A total of 41 respondents went on to make a comment either at Question 25 or at Question 26. As at the earlier questions on the Notices, there was considerable overlap between comments made at Questions 25 and 26 and hence a single analysis is presented below. Please note that comments referring specifically to electronic communication have been considered in the analysis at Question 33.

A number of the comments focused on making the MTA as accessible as possible. A small number of respondents felt the current version is too long or is confusing. In particular, it was suggested that the MTA frequently restates the statutory provisions of a private residential tenancy, rather than being a statement of what is being agreed. Other points raised about accessibility included:

  • It should be structured differently. Specific alternative suggestions are considered at Question 32.
  • It is not clear which parts of the agreement are intended to be Notes for the Landlord and which should form part of the agreement.

It was noted that Section 1 currently advises the user to read the legislation alongside the MTA as the legislation takes priority and may change from time to time. One respondent highlighting this issue felt that the MTA will need to be kept up-to-date if it is to be user-friendly. However, an alternative perspective was that it should be the responsibility of tenants, landlords and managing agents to stay up to date and that changes in legislation should not require the reissuing of a new MTA.

Practical issues which respondents highlighted for consideration included:

  • Consumer testing involving tenants and/or tenant representative groups could be considered.
  • An editable document could be modified without a tenant being aware and could result in them receiving less or no information about their rights.
  • If a different style of landlord registration number is introduced the MTA will need to be amended accordingly.

Several respondents made extensive comments regarding the decision to make the MTA recommended rather than mandatory. Points made included that:

  • If use of the MTA is not mandatory, all the Terms (unless statutory requirements) are effectively discretionary since it is up to the landlord whether they use all or part of the MTA. The statutory clauses that must be contained in any tenancy agreement must be defined in secondary legislation and must include all the mandatory terms of the recommended MTA.
  • Allowing landlords and letting agents to alter the wording of the MTA could result in many different variants, creating confusion and misunderstanding.
  • Consideration should be given as to how a tenant or Tribunal is to determine whether the MTA has been used.

Other comments focused on the relationship between the MTA and the TIP, including whether the TIP will still be required. It was suggested that tenants of landlords not using the MTA will not have access to the legal commentary and may not be aware of their statutory rights if there will be no requirement for a TIP.

Terms used in the Recommended Model Tenancy Agreement

Questions 27 - 30 asked respondents if they had any comments to make on the 40 individual Terms making up the Recommended Model Tenancy Agreement.

Term 1: 'Landlord' (Mandatory)

In total, 18 respondents made a comment on Term 1. A small number of respondents commented on the requirement for the Landlord's details to be given on the MTA. It was seen as unfair that the tenant's details are protected under Data Protection requirements, while a landlord's are made public. Further, it was suggested that if an agent is used, including the landlord's contact details might result in a tenant contacting the wrong person in the event of a problem.

Suggestions included that:

  • It could be made clear that successors of the current landlord, as owners of the property, will be bound by the tenancy agreement.
  • The form should be flexible enough to allow for more complicated details - for example where a company or a Trust is the landlord.

Term 2: 'Letting Agent/Factor/Managing Agent' (Mandatory)

In total, 14 respondents made a comment on Term 2 including that there should be a statement about the legal status and authority of agents. It was suggested that the effect of the current wording is to make the agent a principal, and to incorrectly imply that they are responsible or liable in same way as a landlord.

Other comments included that there should be an option to indicate if the agent is to be the primary point of contact; and a clause to prevent prospective tenants being asked to pay for a background check.

Term 3: 'Tenant' (Mandatory)

In total, 13 respondents made a comment on Term 3. A small number of respondents made comments on provision of Email addresses, including that this should not be mandatory. Other points raised included:

  • Where there are multiple tenants, all their contact information should be listed.
  • The previous contact address for the tenant should be included. It was suggested that without this the agreement would not be legally enforceable.
  • The tenant's national insurance number and any welfare benefit claim number should be required.
  • A nominated lead tenant should be named where there are multiple tenants.

Term 4: 'Communication' (Discretionary)

In total, 19 respondents made a comment on Term 4. The issues raised tended to reflect those covered at Question 33.

Term 5: 'Details of the let property' (Mandatory)

In total, 15 respondents made a comment on Term 5 including that the property size and type should be included, and that details regarding the number of rooms would act as a reference point on occupancy levels for Term 14 (Overcrowding).

It was also noted that there is no mention of gardens or garaging, particularly a lock-up garage that may be remote from the property. It was suggested that a plan delineating the subjects to be let should be required.

Term 6: 'Date when tenancy starts' (Mandatory)

Only 3 respondents made a comment on Term 6, all of which referred to the absence of an end date.

Term 7: 'Occupation and use of the let property' (Mandatory)

In total, 13 respondents made a comment on Term 7. Several of the comments focused on a potential problem concerning corporate lets, where the property may not be occupier's main residence. It was suggested that consideration should be given to creating a separate form of tenancy for corporate lets. Other respondents suggested the addition of 'principal, or 'only or main' to the existing text.

Comments on the words 'formal and registered' in the context of a trade, business or profession, included that these terms should be clarified or that they should be removed. It was noted that informal, unregistered trading could have a significant impact on the property, surroundings and neighbours and that an entirely different regime applies to letting business premises.

Term 8: 'Rent' (Mandatory)

In total 21 respondents made a comment on Term 8.

Rent payments: Many respondents highlighted an inconsistency with the draft stating that rent may be payable in advance or in arrears but then stating that the first payment will be made ' on the date the tenancy starts or before'. Some respondents suggested a change which allows the landlord to specify when the first and subsequent payments are to be made, while others proposed that the reference to payment in arrears should be removed.

Commenting on the date on which rent should be paid, a small number of respondents called for greater flexibility or suggested this should not be a mandatory clause, arguing that it should be possible to pay at other times, in agreement with the landlord.

It was also noted that there is currently no option to pay rent in advance which, it was suggested, can help tenants secure a property. However, another interpretation was that, as drafted, the MTA means that a landlord could not ask a prospective tenant to pay several months' rent in advance. It was suggested that, if this is the correct interpretation, this should be stated clearly.

Arrears: It was suggested the MTA should specify that the landlord can apply to the third-party scheme holding the deposit for deposit deductions due to rent arrears. It was also suggested that there should be a statement about what can be done if payments are late, such as whether interest may be charged.

Service charges: A small number of respondents suggested that the way rent and services (sometimes including utilities) are presented can differ between sectors and that this section of the MTA should reflect those variations. The Build to Rent sector was highlighted as was the assessment of areas to be designated as RPZs. Other comments included that:

  • The relevant section within the MTA should encourage landlords to provide a comprehensive breakdown of charges, or that the landlord should have to specify the services included.
  • Further consideration should be given to how changes to service charges will fit within the proposed system of Prescribed Notices.

Term 9: 'Rent receipts' (Mandatory)

Only 8 respondents made a comment on rent receipts, and all were brief. Several respondents suggested that the Scottish Government should give thought to whether acceptance of rent payments in cash could be complicated by rules in place to reduce the risk of money laundering.

Other points included that an Email containing confirmation of payments should count as a "written receipt"; and that the MTA should require the landlord to specify a date on the written receipt when a rent payment is made in cash. It was also suggested that an annual rent statement should be provided.

Term 10: 'Rent increases' (Mandatory)

In total, 15 respondents made a comment on Term 10. Comments on the text as drafted included that the phrase 'cannot be increased' needs to be clarified. It was also suggested that more information should be provided around: when an increase could be considered unreasonable; and on RPZs, including whether the property is currently in an RPZ. It was also suggested that it would be helpful to reference the timescales within the relevant Notices.

Finally, how this Term would work in conjunction with the Management and Maintenance Agreements for the National Housing Trust was queried.

Term 11: 'Deposit' (Mandatory and discretionary)

In total, 26 respondents commented on Term 11. General points included that it is welcome that no other fees in addition to rent and deposits will be payable by the tenant to the landlord or letting agent.

Several respondents made points concerning Tenancy Deposit Schemes, including that much of what is included in this Term is the responsibility of the Scheme rather than of the landlord as implied in the draft. It was suggested that the name of the landlord, the letting agent (if applicable), and the tenant should be included, and that the landlord must provide details of which scheme has actually been used after the money has been deposited.

Comments on the final paragraphs concerning repayment of the deposit at the end of the tenancy included:

  • The tenant's right to seek the return of the deposit if the landlord has not taken action should be clarified, including that tenants can apply to a scheme.
  • It should be made clear to tenants that, if the money owed to the landlord exceeds that of the deposit, they will remain liable for any outstanding amount.
  • Clearer instructions should be provided for the tenant on how to use the deposit scheme adjudication should a dispute arise. This section should also specify where a tenant can seek advice regarding deposits.

Term 12: 'Landlords costs and interest' (Discretionary)

In total, 21 respondents made a comment on Term 12. A number of these respondents expressed concerns about the inclusion of Term 12 and argued strongly that it should be removed. Comments included that:

  • It undermines the role of the Tribunal system in determining where costs should be apportioned and, hence, represents a fundamental breach of basic rights of a tenant. As drafted it would give the landlord a claim on the tenant for reasonable costs, even if the Tribunal had found in the tenant's favour.
  • A potential consequence of this Term could be to encourage landlords to pursue vexatious evictions or use enforcement action for only minor breaches or arrears, without making reasonable attempts to recover those arrears.
  • Giving the landlord the opportunity to insert the interest rate is open to abuse. Suggestions included that: there should be an upper limit on the rate used or the total amount charged; there should be reference to 'reasonable interest'; or the rate should be capped in line with practices in the social rented sector.

Several respondents recommended removal of the legal term 'without prejudice', suggesting its meaning might not be generally understood. It was also suggested that the Term be amended to clarify that multiple tenants are jointly and severally liable and that the landlord can determine which tenant to pursue for reimbursement.

Term 13: 'Notification about other residents' (Mandatory and discretionary)

In total, 18 respondents made a comment on Term 13. A significant proportion of these comments concerned the last two (discretionary) clauses. In particular, several respondents commented on the requirement that '… the Tenant must ensure that the let property does not become an unlicensed "house in multiple occupation" ' suggesting this clause should be amended or removed. Points made in support of this view included that:

  • The tenant will not know the HMO regulations but the current draft does not do enough to explain why it is important not to allow the property to fall under the definition of an HMO.
  • Once the tenant seeks approval from the landlord for other residents moving into a property, it is the responsibility of the landlord - not the tenant - to ensure that property does not become an unlicensed HMO.
  • It is the landlord's responsibility to submit an application for an HMO licence if this is required and to refuse permission for additional tenants to live at the property if no licence is in place.

It was also suggested that it is not reasonable to require the tenant to pay any legal costs associated with a landlord being in breach of HMO regulations. Other respondents also considered that such a liability is unreasonable or too broadly written.

Comments on the remainder of Term 13 were less extensive but included:

  • The tenant should only be required to take reasonable care for the acts of third parties. No tenant should sign a tenancy agreement 'ensuring' the behaviour of any other person.
  • The Term does not allow for situations involving domestic abuse, when an abuser may deliberately seek to get their partner evicted by creating a breach of the tenancy. There should be an additional phrase included to ensure that any action taken is proportionate.

Term 14: 'Overcrowding' (Mandatory)

In total, 23 respondents made a comment on Term 14. Comments included that it makes sense to include a Term relating to overcrowding given that a landlord served with an Overcrowding Statutory Notice will be compelled to take action to resolve the situation. However, it was also suggested that, given the complexity involved in determining the maximum occupancy level, it is not reasonable to place the burden of not allowing the property to be overcrowded on the tenant.

Many of other the points raised concerned the difficulty in determining the maximum number of people who can live at a property, and the need for more guidance on how to do this. Specific comments included:

  • The requirement to quote a single figure seems contradictory and it is not clear how such a figure can be arrived at.
  • What constitutes overcrowding for one family may not apply to another as the age and gender of children will be taken in to account, and the landlord will not know the specific ages of the children or if the family has another child.

Term 15: 'Subletting and assignation' (Mandatory)

Only 6 respondents made a comment on Term 15. Several of these were very similar in content, often referring back to remarks on Term 13. Specific points raised included that provisions within the Act and the MTA either do not allow for subletting without proper landlord consent, or there are unlikely to be any situations were subletting is appropriate.

Term 16: 'Contents and condition' (Discretionary)

In total, 25 respondents made a comment on Term 16. Several respondents who suggested providing an inventory should be mandatory noted that it can be used as evidence in the event of a dispute, and is also mentioned in some of the Notices.

Other respondents raised an issue with the text as drafted, in that the inventory and condition survey often happens on the day of entry to the property. However, this means the report will rarely be available to attach to the MTA at the point the tenancy is signed, usually prior to entry to the property. It was also suggested there is little point in signing an inventory while it can still be challenged and that the tenant should have 7 days from the date of entry to the property (or the date on which the inventory is provided if this is later) to check, sign and return the inventory to the landlord, or to highlight discrepancies. A number of respondents proposed that this period to challenge the inventory and record of condition should be extended to either 14 or 28 days.

The second paragraph of Term 16 states that ' The Tenant agrees to replace or repair …any of the contents which are destroyed, damaged, removed or lost during the tenancy, fair wear and tear excepted'. It was suggested this obligation should only apply when loss or damage is attributable to the tenant's fault or negligence, or that of anyone residing with them, or of a guest. Other suggestions included that, where the tenant is having to cover the cost of cleaning or repairs, the landlord should be required to get more than one quote for the work, or the tenant should be able to source an alternative quote.

The final sentence of Term 16 says that ' A Landlord can apply for the costs involved in making good any damage or cleaning found necessary to be deducted from any deposit paid by the Tenant, which should not be limited to the amount of deposit actually held.' Several respondents suggested that this sentence is not clear and should be amended: it was suggested that the position is that landlords can apply for costs through the Tenancy Deposit Scheme up to the full amount of the deposit, and then go to the small claims court if they want to make a claim larger than the deposit. It was proposed a statement should be added that if the sums incurred by the landlord in respect of replacing/repairing any contents or remedying any damage to the property are higher than the amount of the deposit held, the tenant will still be liable for these additional sums.

It was also suggested that this Term should include details of the process to deal with disputes over discrepancies or where a tenant challenges the costs involved in making good any damage or undertake cleaning.

Term 17: 'Local authority taxes/charges' (Discretionary)

In total, 14 respondents made a comment on Term 17. A number of these respondents noted that the Term as currently written does not allow for a situation where these charges are included in the rent payment, which is possible, particularly for corporate lets. It was also noted that some rural properties may have a private water supply or septic tank, and it was suggested that the MTA should allow a landlord to recoup related charges from a tenant.

Other comments focused on the requirement for the tenant to notify the local authority of the tenancy's start date including that, if the landlord is no longer required to notify the local authority, then existing legislation requiring them to do so should be amended. It was also suggested it should be made clear that the tenant is responsible for contacting the local authority regarding eligibility for any discounts and that there should also be an obligation for the tenant to notify the local authority of the tenancy's end date.

Term 18: 'Utilities' (Discretionary)

In total, 24 respondents made a comment on Term 18, including that, where utility costs are included in the rent, a landlord should be able to increase the overall rent to reflect a utility price rise without following the process of the Prescribed Notices.

Several respondents commented on outstanding charges at the end of the tenancy being deductible from the deposit, including that if the landlord applies to deduct money from the deposit for payment of utility arrears, it should be made clear that this money will go towards repayment of those arrears. It was also suggested that the tenant should be required to advise utility companies of their forwarding address, and guidance was sought as to whether it would be legal for the landlord to provide a tenant's forwarding address to a utility supplier.

Respondents also raised issues about the tenant's right to change a utility supplier, feeling that this is a basic right and not at the discretion of the landlord, so inclusion of this information should be mandatory. It was also suggested that if the Tenant does change a utility supplier, there should be an obligation to inform the Landlord and to provide details. A small number of respondents raised particular concerns about the requirement for any new meter installed by the tenant to be changed back at the end of the tenancy at the tenant's expense.

Term 19: 'Insurance' (Mandatory and discretionary)

In total, 24 respondents made a comment on Term 19. General comments included that there could be greater clarity about what is covered by each of the landlord's and tenant's insurances.

Comments on the first (mandatory) paragraph included:

  • The clause should be discretionary. As drafted, it implies a legal requirement to carry building or contents insurance which is not, or should not be, the case. An alternative view was that buildings insurance should be a mandatory pre-requisite for applying for registration as a landlord.
  • It would be usual to stipulate that the tenant must not do or permit anything which might compromise the insurance or cause an increase in the premium.
  • This paragraph should be amended to make clear that the landlord has no liability to insure any items belonging to the tenant.

Comments on the second (mandatory) paragraph included that as drafted this seems to imply, incorrectly, that it is compulsory for the tenant to insure their own possessions.

A number of respondents commented on the final (discretionary) paragraph and, in particular, that it needs to make clear that the tenant is not responsible for damage resulting from fair wear and tear.

Term 20: 'Absences' (Discretionary)

In total, 14 respondents made a comment on Term 20. A small number of respondents suggested Term 20 should be mandatory because it relates directly to responsibilities set out in the mandatory Term 21. Since Term 21 already deals with preventing pipes from freezing, it was also suggested that only the first sentence of Term 20 is actually required.

The suggestion is that the tenant should tell the landlord when they are absent from the let property ' for a period of more than 14 days'. Views on the length of this period varied including that it is too short, and that 21 days, 28 days or the period used by the mortgage lender would be more appropriate.

Several respondents also suggested that, if the tenant fails to carry out obligations under Term 20 (and 21) it should be made clear that the landlord may recover costs from the tenant to carry out any necessary repairs.

Term 21: 'Reasonable care' (Mandatory)

In total, 27 respondents made a comment on Term 21. General suggestions included that the tenant should be obliged to take 'good' rather than 'reasonable' care, or alternatively that the Term is too detailed and should be redrafted to require a tenant to take reasonable care of the let property and common parts to ensure it is in a reasonable state at the end of the tenancy.

Many respondents commented on the tenant not applying sticky materials to the internal walls of the let property, including that its inclusion is disappointing and that not allowing someone to put up posters or pictures without risking being in breach of their tenancy seems contrary to the spirit of the new tenancy. Several respondents expressed a view that this clause should either be removed while others suggested consideration be given to what is reasonable and enforceable.

References to other clauses were limited but included:

  • That the tenant should make sure the property is kept warm and/or water tanks are drained down if absent for a period of time.
  • That the requirement to ensure the let property and its fixtures and fittings are kept clean during the tenancy should be removed and a similar approach to Term 24 (maintenance of the garden) be used.
  • That there is a contradiction with discretionary Term 28 which could restrict tenants from legally keeping shotguns and ammunition.

Several additional clauses were suggested, including not disposing of inappropriate items through drains or septic tanks; flexibility to add specific requirements for some properties (such as exclusion of naked flames, or particular conditions relating to historic features) and a set of additional clauses that might be suitable for supported accommodation.

Term 22: 'Alterations' (Discretionary and mandatory)

In total, 16 respondents made a comment on Term 22. The first paragraph of this Term is discretionary, while the second and third are mandatory. Several respondents proposed that the whole Term should be mandatory, suggesting that it should be made clear that the landlord's consent is required for any alterations to the property. It was suggested that it should be specified that these alterations must not include structural works, or works that would have a negative impact on the value of the property, and there should also be a provision that the tenant is liable for costs to reinstate the property in its original condition. Other suggestions included a specific clause prohibiting temporary subdivision of rooms.

In contrast, other respondents suggested that:

  • Forbidding 'internal or external decoration without prior consent is unwarranted and tenants should be able to decorate, as long as they do not cause damage.
  • The tenant should be allowed to customise the property so long as the property is returned in the same condition as it was at the start of the tenancy.
  • There could be a list of things the tenant is permitted to do to the property, which the landlord could amend.

The second and third (mandatory) paragraphs concern requests for adaptations, auxiliary aids or services under section 37 of the Equality Act 2010 or section 52 of the Housing (Scotland) Act 2006. It was suggested that the historical significance of the property should be borne in mind when judging reasonableness or that the landlord should not be obliged to undertake major structural changes that would have an adverse effect on the value of the property.

Term 23: 'Common parts' (Discretionary)

In total, 17 respondents made a comment on Term 23. A number of respondents suggested it would be appropriate to include a reference to whether a property is factored, sometimes adding that, if a property is not within a factored development, there should be a mandatory obligation to co-operate in maintaining communal areas. However, a small number of other respondents suggested the Term as currently drafted is too specific and should instead require that tenants take 'reasonable care' of common parts or keep communal areas 'reasonably clean and tidy'.

Two issues were raised in relation to paying to have common areas cleaned. First, it was suggested that, where other tenants in a property have agreed to pay for cleaning of common areas, the tenant should be obliged to do so as well. Secondly, the possibility was raised that, where communal owners have arranged cleaning of common parts but do not keep up payments, this clause could allow costs to be recovered from the tenant.

Other comments on the wording of Term 23 included that:

  • Non-flatted properties may also have common parts.
  • The areas listed seem to describe an older tenement building and more modern buildings might have different types of common areas.
  • It would be more appropriate to include the agreement not to smoke in the let property (Term 32) under Term 23.

Finally, several respondents commented on the ability of the landlord to recover costs if the tenant fails in their responsibilities. These comments included that only 'reasonable' costs should be sought and that a landlord should be able to apply to the scheme holding the deposit for any deposit reductions.

Term 24: 'Private garden' (Discretionary)

In total, 13 respondents made a comment on Term 24. A small number of respondents commented that the tenant should be required to maintain the garden to an adequate standard throughout the tenancy, and that if necessary there needs to be a provision for the landlord to get work done and recover costs during the tenancy. Other comments included that: the wording should be amended to reflect the seasonal nature of garden maintenance; the landlord should provide the tenant with suitable tools to maintain the garden; and that the clause is unfair and should be removed.

Term 25: 'Roof' (Discretionary)

In total, 12 respondents made a comment on Term 25, The wording suggested in the consultation paper is that ' t he Tenant is not permitted to access the roof, without the Landlord's written consent' to which several respondents suggested addition of 'except in an emergency', or that what is meant by 'roof' as distinct from internal 'roof space' such as attics should be clarified.

Term 26: 'Bins and recycling' (Discretionary)

In total, 15 respondents made a comment on Term 26. Specific suggestions included adding information both about arrangements at a particular property and on local arrangements for chargeable waste collections. Other points included that there should be provision for a landlord to recover costs incurred during the tenancy if the tenant does not comply with the requirements including by leaving rubbish in common areas.

Term 27: 'Storage' (Discretionary)

Only 8 respondents made a comment on Term 27, and of these a number referenced earlier remarks on Terms 13 and 26. Other comments included that reference should be added to not causing a fire or safety hazard and that, since what causes a nuisance to neighbours is subjective, it would be better to be more specific - for example that bicycles may not be stored in common parts of the property.

Term 28: 'Dangerous substances' (Discretionary)

In total, 12 respondents made a comment on Term 28. A number of these referenced earlier remarks on Term 21 (Reasonable Care) sometimes adding that this clause replicates mandatory provisions under Term 21. Other comments included:

  • This term should be mandatory as it affects the safety of neighbours as well as the tenant.
  • Particularly for properties without mains gas, that the tenant should not be permitted to bring a gas appliance into a property, as this would contravene a Landlord Gas Safety Certificate.

Term 29: 'Respect for others' (Mandatory)

In total, 26 respondents made a comment on Term 29. Several respondents made general points, or suggested amendments to the two introductory paragraphs in which antisocial behaviour and harassment are described. Other comments included:

  • Including a definition of antisocial behaviour is welcome but it should reflect the definition in paragraph 14(3) of part 3 of schedule 3 to the Act.
  • Listed persons should include the landlord, representative of the landlord or neighbours and the let property should be extended to include the immediate neighbourhood. An alternative suggestion was that 'any person' should not be further defined as a definition is limiting.
  • Antisocial behaviour should be redefined as requiring multiple or repeated events.
  • There should be a general requirement not to act 'in a manner which may interfere with the peaceful enjoyment of other residents'. The Term should state that the tenant, fellow residents and visitors should not engage in antisocial behaviour or criminal activity at the property, but without the long list of prohibitions.

The Term as drafted sets out a number of behaviours that the tenant, those living with him/her, and his/her visitors must not do, and respondents commented on several of these. The points raised most frequently were that:

  • 'Immoral' is not required when simply 'illegal purposes' would be sufficient.
  • Licensed firearms should not be restricted, and anyone in possession of an unlicensed firearm would in any case be in breach of the requirement not to carry out illegal activity.

Term 30: 'Equality requirements' (Mandatory)

Only 6 respondents made a comment on Term 30 and although opinions varied all were brief. One respondent suggested that, given the importance of this term, it should not only be a mandatory but also a statutory term. Another respondent asserted that the Equality Act 2010 does not apply to individuals and therefore cannot be applied to tenants. A third view was that the rights and obligations under the 2010 Act are not a matter of contractual agreement, so the term is not necessary or useful.

Term 31: 'Pets' (Discretionary)

In total, 15 respondents made a comment on Term 31. One view was that there should not be an assumption that pets will be allowed. Where pets are permitted, it was suggested that:

  • An additional deposit may be required, and that costs to cover damage caused by a pet or cleaning required at the end of a tenancy because of a pet and not made good by the tenant can be charged to the tenant.
  • The cleaning requirement should include professional cleaning.

In contrast, other respondents took the view that consent should not be unreasonably withheld, including because some tenants may have a medical or psychological need for a pet. An alternative wording was proposed whereby the landlord would agree to a tenant keeping a pet unless the property had furnishings that might be damaged as a result or there was another good reason not to agree.

Term 32: 'Smoking' (Discretionary)

In total, 18 respondents made a comment on Term 32. It was argued that, since smoking is a legal activity, this Term represents a disproportionate intrusion into a person's activity at home and could be discriminatory. Other comments included that for the purposes of prohibiting smoking, the let property should be defined to include common parts. Other suggested changes included:

  • The Term should be amended to allow smoking by mutual agreement, or with the consent of the landlord, or subject to certain conditions being met.
  • The MTA should make it clear that a claim could be made on the deposit for redecoration or cleaning to remove odours.
  • There should be an opportunity to detail 'no smoking' areas.

Term 33: 'The repairing standard etc. and other information' (Mandatory and discretionary)

In total, 23 respondents commented on Term 33. General comments included that:

  • The landlord's ability to discharge these duties is restricted / limited by the provisions contained under Term 36 (Access for Repairs). It was suggested it should be made clear that the obligations placed on landlords under Term 33 give them the right to access let property under Term 36.
  • There should be a provision to deal with disputed costs or liability. It was also suggested that the First-tier Tribunal must entertain Tenant Improvement agreements in any dispute regarding Repairing Standards.

Points made under the various subheadings included the following:

Structure and exterior: Responsibility for chimney sweeping should not be mandatory since the frequency required will depend on use. It was also suggested that responsibility that should be passed to the tenant, also because the frequency required will depend on use, and only the tenant will know what this has been.

Electrical safety: Hot water tanks with an immersion heater were suggested for addition to the list of fixed electrical appliances requiring visual inspection, and it was recommended that Portable Appliance Tests should be carried out annually.

Smoke detectors: It was suggested the tenant should be responsible for checking alarms on a regular basis, informing the landlord of any problems for replacing batteries where appropriate.

Defective fixtures and fittings: The landlord's responsibility to repair or replace defective fixtures etc. should apply not only to a defect due to 'usual wear and tear' but also for example, to theft, vandalism or natural disasters.

Payment for repairs: Where a tenant is liable for the cost of repairs, there should be a requirement that the cost is 'reasonable'.

Information: The gas safety certificate, electrical safety inspection reports and energy performance certificate should be provided at, or before, the start of the tenancy.

Term 34: 'Liquid Petroleum Gas' (Discretionary)

Only 6 respondents made a comment on Term 34. It was also noted that in some properties LPG is the only form of heating, or that permission to use LPG heaters could be agreed by mutual consent, unless a central heating system has been installed and is in working order.

Term 35: 'Legionella' (Mandatory)

In total, 11 respondents made a comment on Term 35. There was support for its inclusion but also a suggestion that further guidance is necessary both to explain what would constitute 'reasonable steps' for a landlord to take and how to carry out a suitable risk assessment and implement appropriate control measures. However, other respondents questioned the legal basis for the Term, queried why Legionella control is included when other similar problems are not, or suggested it should be extended to cover scheduled diseases and asbestos.

Term 36: 'Access for repairs' (Mandatory)

In total, 22 respondents made a comment on Term 36. Among general comments it was noted that three of the prescribed statutory terms set out the clauses that are to apply to access for repairs. There was a question as to why the MTA does not simply state these terms which, it was suggested, would not require further elaboration.

Other general points included that it would be useful to have examples of what would be considered an emergency and that all clauses referring to access should also provide for contractors working on behalf of the landlord.

With respect to the relationship of Term 36 to other parts of the MTA, particularly Term 33, it was suggested that:

  • It should be made clear that a landlord has the right to access a let property where they have an obligation to do so under any of the Terms contained within the MTA.
  • There should be a provision that enables a landlord to appeal to the First-tier Tribunal where a tenant fails to provide access.
  • There should be a safeguard for landlords who have been unable to gain entry to undertake the obligations placed upon them.

The first sentence states that ' The Tenant must allow reasonable access to the let property for an authorised purpose where the Tenant has been given at least 48 hours' notice, or access is required urgently'. Comments on this included that 48 hours is not very long and may not be convenient, and that there should be flexibility for negotiation between landlord and tenant.

Term 37: 'Data protection' (Mandatory)

Only 8 respondents made a comment on Term 37. Several respondents suggested the wording should simply read 'The Landlord and/or Letting Agent agree to abide by the Data Protection Act 1998', while an alternative suggestion was for a minor amendment to the existing text to read '…held securely and only lawfully disclosed'. In contrast another respondent advised significant expansion of the Term to include more extensive text concerning the Data Protection Act. Other points made on data protection were:

  • Landlords should be allowed to notify the council, utility or referencing companies of a tenant's details.
  • That the landlord's obligations under the Data Protection Act are not a matter of contractual agreement and do not need to be included as a Term, but could be summarised in the TIP.

Term 38: 'Ending the tenancy' (Mandatory)

In total 27 respondents made a comment on Term 38, including that:

  • This is a key Term and needs to be set out clearly so that tenants have a full understanding of their rights and responsibilities. Some of the information, particularly the distinction between mandatory and discretionary grounds for eviction, could be set out in the legal information accompanying the tenancy.
  • It is not necessary to list the statutory provisions relating to the termination of the tenancy in the tenancy agreement. Instead, the first paragraph could simply be followed by a statement that the statutory provisions contained in the 2016 Act concerning termination of the tenancy, eviction proceedings before the First-tier Tribunal etc., are described in the TIP.
  • If the MTA is to accord with the Act as it may be updated, amended or re-enacted then this Term should include reference to any new statutory ground which may be introduced by the Scottish Government.

Several respondents suggested additional items that should be added including:

  • What happens if a landlord owes the tenant money at the end of a tenancy.
  • Any relevant rent apportionment calculations applicable.
  • Advice to the tenant to remove all of their belongings and that failure to do so could result in monies being deducted from any deposit.
  • Information about the right of the landlord to dispose of the tenant's belongings if they are not claimed.
  • A statement about the condition in which the property is to be left.

Term 39: 'Declarations' (Mandatory)

Only 5 respondents made a comment on Term 39. These included that a declaration that the tenant has 'read and understood all of the terms of this agreement', is potentially an unfair term under the Consumer Rights Act 2015. It was suggested that attention should be drawn to the responsibility of the signatory by providing a clear and prominent warning at the beginning of the agreement.

It was also suggested that tenants signing this agreement are also signing agreement amongst themselves that the tenancy is joint and several.

Term 40: 'The guarantor' (Discretionary)

In total, 15 respondents made a comment on Term 40. Comments on the nature and role of the guarantor included that further information/definition is required, including clarification that, if the tenancy is a joint one, then the guarantor is guaranteeing the payments and obligation of all tenants. It was also suggested that the potential liability of guarantors for legal fees incurred by landlords using legal remedies in pursuit of defaulting tenants should be referenced.

Question 31: While users will have the ability to add their own unique tenancy terms, are there any other terms that you think it would be helpful to include as standard terms in the 'Recommended Model Tenancy Agreement'?

In total 20 respondents answered Question 31. Several respondents made general comments including welcoming the capacity to add specific terms, suggesting that discretionary terms should be negotiated between landlord and tenant or suggesting that landlords should be able to add free text to suit individual circumstances.

Specific suggestions for additional terms or requirements included:

Abandoned goods: There should be a term dealing with abandoned goods belonging to the tenant and the responsibility of the landlord to legally remove/store/destroy/sell the possessions within a reasonable timescale.

Abandonment: There should be a provision that the landlord can repossess after a reasonable period should the tenant abandon the property.

Access: There should be a term relating to access. However, respondents had varying views on how this term should be framed. Suggestions included a term that allows reasonable access to the property for landlord inspection prior to the tenant leaving and a term that allows access by the landlord and/or letting agent to conduct viewings prior to sale or re-letting and the right to erect signs for this purpose.

Bullying and harassment: It was proposed that such a term would detail the behaviours that, if demonstrated by a landlord or the landlord's agent where the landlord knows that this is likely to intimidate the tenant, would constitute bullying and harassment.

Car parking: Details should be provided with regard to parking provisions and whether the landlord has provided parking permits within the charges for the let property.

Communication: The current Term 4 on Communication should be split into two separate terms: one dealing with regular communications, which can include electronic communication and personal delivery, and another term, which solely focuses on 'Methods of service of prescribed notices' and excludes electronic communication and personal delivery (unless by a sheriff officer).

Joint and several liability: There should be a term stating that the property is to be used by the tenant and co-tenants as a single household living together with no rooms to be treated as being let to a single individual.

List of third party and statutory bodies and agencies: There should be a mandatory section, at the beginning of the agreement, highlighting and explicitly stating the bodies that are there to assist the tenant, such as the First-tier Tribunal, Tenancy Deposit Schemes and Rent Officer.

Special tenancy types: There could be terms making clear that a particular tenancy is linked with employment or support.

Question 32: Do you have any other general comments on the 'Recommended Model Tenancy Agreement'?

The final question in this section gave respondents an opportunity to make other general comments on the MTA. The focus here is on issues that have not been covered elsewhere within this report.

Several respondents proposed an alternative structure for the MTA. These suggestions included:

  • It should be organised into logical groupings with the most important elements first, as is the norm with current Assured and Short Assured Tenancies.
  • It should separate mandatory, discretionary and customised terms, listing them in this order.
  • Mandatory and discretionary clauses could be presented in two separate but related documents.

There were also points on how the MTA will work in practice, including that it is not clear whether the MTA must remain intact or whether the landlord can delete discretionary clauses; that private landlords should be required to submit a copy of the tenancy agreement that they intend to use to the relevant local authority team as a condition of their registration; and that guidance is required as to how the new arrangements would affect existing National Housing Trust Management and Maintenance Agreements.

Finally, with reference to the roll-out of the new arrangements it was suggested that it would be helpful if both the general public and advice providers are given information about both the MTA and the new Notices and Forms prior to their launch. It was also suggested that tenants in social care -related or supported accommodation may require particular support to understand the new MTA.


Email: Alan Garft

Back to top