Private Tenants

Types of Tenancies

Once you have made the decision to rent a property from a private landlord and began your search for a suitable property you will probably find that there are a few different types of tenancy agreements.

Short Assured Tenancy
Assured Tenancy
Tenancy Agreement
Ending the Tenancy
Grounds for repossession
Houses in Multiple Occupation (HMO)

 

Short Assured Tenancy

The most common types of agreements in the private sector are Short Assured Tenancies. A Short Assured Tenancy is a special type of assured tenancy. It gives the landlord special rights to repossess the house he has let and also special rights to the tenants to apply to the rent assessment committee for a rent determination.

All tenants on a Short Assured Tenancy have the security of tenure for not less than six months. The landlord must give, before the tenancy agreement is signed, an AT5 notice for the tenant to read and sign, this advises the tenant that the property is on offer as a Short Assured Tenancy.

Therefore to create a Short Assured Tenancy the following conditions must apply:

• The landlord should give the prospective tenant an AT5 notice to read and sign, this advises the tenant that the offer is of a Short Assured Tenancy.
  
• The tenancy must be for a fixed period of six months.

Assured Tenancy

An Assured Tenancy is a letting of all or part of a house made after January 1989 and is normally the tenants' only or principal home, it will not be assured if it falls into any of the excluded categories some of which are:

• A letting for a holiday.
  
• A tenancy where the landlord is a 'resident landlord'.
• A tenancy entered into or resulting from a contract made before 2nd January 1989.
  
• A tenancy on a temporary basis for homeless persons.

Assured tenants have a security of tenure, which means that the landlord must get a court order for possession before the tenant can be made to leave. The grounds for possession are detailed below*.

Tenancy Agreement

The Tenancy Agreement must be a written document and the terms of the agreement should be agreed between the landlord and the tenant before the tenant signs the agreement.

The agreement should cover:

1. The length of the tenancy
2. The rent, and when and how it is to be paid and how any rent increases are calculated or otherwise decided on
3. Who is responsible for internal decoration and internal and external repairs and maintenance
4. Any condition or restrictions on the use of the property

Ending the Tenancy

If you have a Short Assured Tenancy you only have security of the tenure during the agreed period of let. During that time you cannot be evicted, providing you don't break any of the tenancy conditions. At the end of the agreed period the landlord has the right to apply for repossession if he wants. However, the tenant can still stay in the property until the court grants the landlord an order for possession.

If you have an Assured Tenancy then you have security of tenure even when your contractual assured tenancy has ended. You do not have to leave the property unless the court has granted an order which allows the landlord to repossess the property.

The landlord must do 3 things before he is able to gain possession of the property these are -

1. A Notice to Quit must be served on the tenant.
   
2. A Notice of Proceedings indicating that he is taking proceedings to gain possession.
   
3. Must obtain an order for possession from the sheriff court.

If the landlord serves a Notice to Quit but does not seek to regain possession then the contractual assured tenancy will be changed to a statutory assured tenancy, the landlord may then propose new terms for the tenancy.

Grounds for repossession

There are 17 grounds on which possession can be obtained (shown below) these are set out in Schedule 5 to the Housing (Scotland) Act 1988.

Ground 1 to 8 are mandatory grounds - that is if they are established the sheriff must grant an order for possession.

Grounds 9 - 17 are discretionary grounds - that is even if they are established the sheriff will grant an order for possession only if he believes it is reasonable to do so.

Grounds 1 to 8

1. The house was the landlord's only or principal home at any time before the tenancy was granted or The landlord needs the property for himself or his spouse for use of the principal home of one or both of them and did not become the landlord through buying the house or otherwise acquiring it for value.
2. There is a mortgage over the house and the lender is entitled to sell the house because the landlord has not abided by the conditions of the mortgage.
3. The house or room was let for a specified period of 8 months or less and was occupied for a holiday during the previous 12 months.
   
4. The house or room was let for a specified period of 12 months or less and was let to a student by a university or other specified educational institution during the previous 12 months.
   
5. The house or room is normally held for use by a minister or full-time lay missionary in connection with his work and the sheriff is satisfied that the house or room is again required for this purpose.
   
6. The property is to be demolished or is due for substantial works.
   
7. The tenant has died and the tenancy is succeeded by another person and the landlord has started proceedings not later than 12 months after the former tenants death.
   
8. There is at least 3 months rent arrears both on the date which the Notice of Proceedings was served and at the date of the court hearing.

Grounds 9 to 17

9. The landlord has offered suitable alternative accommodation
   
10. The tenant has given Notice to Quit but has not moved out of the property
    
11. There is persistent delays in rent payments
    
12. Some of the rent is still unpaid even at the start of court proceedings and at the time of serving the Notice of Proceedings
    
13. Any obligation of the tenancy has been broken ( other than rent payments)
    
14. The tenant has allowed or caused damage to the house or common parts of the building in which the house is situated
15. The tenant or anyone living with him has caused a nuisance or annoyance to neighbours or has been convicted by a court of immoral or illegal use of the premises.
16. The tenant has damaged the furniture or allowed it to become damaged.
17. The house was let to the tenant because he was employed by the landlord and the tenant is no longer employed by the landlord