Private Housing (Tenancies) (Scotland) Act 2016: guidance for landlords

The Private Housing (Tenancies) (Scotland) Act 2016 comes into force in Scotland on 1 December 2017.

The Act introduces a new tenancy to be known as the Private Residential Tenancy. If you are a Landlord of residential tenancies it is essential that you are aware of the new tenancy and the obligations introduced by the Act. 

There are three fundamental differences introduced by the Act: 

1. End to fixed term tenancies.
2. End to 'no fault' evictions.
3. Tenants can give 28 days' notice to leave.

New tenancies

After 1 December, any new tenancy granted will be a private residential tenancy as long as:

• The property is let as a separate dwelling – this includes the renting of a bedroom in a property
• The tenant lives in it as their main home
• It is not excluded under the Schedule 1 of the Act (includes shops, licenced premises, agricultural land, student lets, holiday lets and social housing).

Landlord's obligations

1. You must provide your tenant with written terms and conditions. The Scottish Government has issued a Model Private Residential Tenancy Agreement. The new Tenancy can be "signed" electronically by both parties typing in their names and sending by email. If your tenant agrees, all communications can be by email, including notices to be served.
2. If you do not use the Model Private Residential Tenancy Agreement, you must give your tenant a copy of "Private Residential Tenancy Statutory Terms Supporting Notes." Your tenant can make an application to the First-tier Tribunal for Scotland (Housing and Property Chamber) ("the Tribunal") if you don't give them the required information. If the 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 specified information relating to their tenant terms or six months' rent if you haven't provided either. 
3. You must be a Registered Landlord with the Scottish Landlord Register 
4. If you need to access the property you should give the tenant 48 hours' notice.
5. If you want to increase the rent, you have to give at least three months' notice using the form specified by the Act. Your tenant will have the ability to contact a rent officer if they disagree, who can decide what the rent for the property should be. You can only increase rent once in a 12 month period. 
6. Other than rent, you can only ask your tenant to pay a refundable deposit – which can be no more than two months' rent and must be registered with an approved tenancy deposit scheme.

Existing tenancies

The new Act won't affect existing leases – these will continue until either you or your tenant bring them to an end by serving a notice to quit. 

Notice to leave

To commence recovery of the property, you must serve on your tenant a statutory notice called a “Notice to Leave” specifying one or more of the 18 grounds set out in the Act and the date on which you expect to be able to apply to the Tribunal for an eviction order.

Your tenant must be given a minimum period of notice before the eviction action can commence. The period is 28 days if the tenant has lived at the property for less than 6 months or 84 days if longer than 6 months. In certain circumstances (such as where your tenant has engaged in antisocial behaviour, or has been in rent arrears for three or more consecutive months) 28 days' notice is required, regardless of how long your tenant has been entitled to occupy the property

If your tenant fails to vacate at the end of the notice period, you can apply to the Tribunal for an eviction order.

The grounds

The grounds are split into four categories: 

1. Let property required for another purpose
2. Tenant’s status
3. Tenant’s conduct
4. Legal impediment to let. 

Some of the grounds are referred to as mandatory and some are discretionary. If a mandatory eviction ground is established on the evidence presented, the Tribunal must grant an eviction order without any consideration of whether it is reasonable in the circumstances. 

Mandatory (this means that if the Tribunal agrees that the ground exists, then your tenant must leave the property):

• Landlord intends to sell the let property. You plan on putting the let property up for sale within three months of the tenant moving out.
• Let property to be sold by lender. Your mortgage lender wants to repossess the property and sell it.
• Landlord intends to refurbish the let property. You want to carry out major works to the let property that are so disruptive that your tenant wouldn't be able to live there at the same time.
• Landlord intends to live in let property. You want your tenant to move out of the property so that you or your joint landlord can move in.
• Landlord intends to use the let property for non-residential purpose. You want the tenant to move out so you can use the property for something other than a home.
• Let property required for religious worker. The property is held to be available for someone who has a religious job (like a priest, nun, monk, imam, lay missionary, minister, rabbi or something similar).
• Tenant has a relevant criminal conviction. Your tenant is convicted of an offence punishable by imprisonment that involved them either: using the property for illegal reasons, letting someone use the property for illegal reasons, and committing a crime within or near the property
• Tenant is no longer occupying the let property. The property isn't being used as the main or only home of your tenant or a legal sub-tenant.

Discretionary grounds (this means that even if the Tribunal agrees that the ground exists, it still has to decide whether it will issue an eviction order):

• Landlord's family member intends to live in the let property. A member of your family plans to move into the property as their only or main home for at least three months.
• Tenant no longer needs supported accommodation. Your tenant moved in because they had a need for community care and they've since been assessed as no longer having that need.
• Tenant has breached a term of the tenancy agreement. Your tenant hasn't complied with one or more of the terms of tenancy.
• The tenant has engaged in relevant antisocial behaviour. Your tenant has behaved in an antisocial way to another person, by doing something which either causes them alarm or distress, is a nuisance or annoyance or is considered harassment.
• Tenant has associated in the let property with someone who has a criminal conviction or is antisocial. Your tenant allows someone into their property and they behave in an antisocial way that would have them evicted if they were the tenant.
• Landlord has had their registration refused or revoked. You aren't registered as a landlord in the local council area where the property is located.
• Landlord's HMO licence has been revoked. The HMO (House of Multiple Occupancy) licence for the property has been removed and keeping all the tenants in the property would no longer be legal.
• An overcrowding statutory notice has been served on the landlord An 'overcrowding statutory notice' has been served on you because the property is overcrowded to the extent that it may affect the health of the people living there.

Grounds which could be mandatory or discretionary:

• Tenant is in rent arrears over three consecutive months. The tenant has been in 'rent arrears' (has owed rent payments) for three or more months in a row.
• Tenant has stopped being — or has failed to become — an employee. You let the tenant move in because they were an employee of yours or were expected to become one, and now they aren't.