Tenancies after 30 November 2017

The Private Housing (Tenancies) (Scotland) Act 2016 came into effect on 1 December 2017. From this date, there is only one type of tenancy that you can set up – the private residential tenancy (PRT). However, tenancies that started before this date will continue to operate until they come to an end.

The PRT is a completely open-ended tenancy with no minimum or maximum periods. Landlords are only able to recover possession of their property using one of 18 specified grounds for repossession. The 'no-fault' ground for repossession of short assured tenancies is not available for PRTs.

Deciding which type of tenancy to set up

Prior to 1 December 2017 a landlord had a choice of setting up an assured or short assured tenancy. Since 1 December 2017 all new tenancies are PRTs provided:

• the property is let to at least one individual person as a separate dwelling;
• the tenant lives in it as their only or main home; and
• the tenancy isn't excluded.

If the conditions above exist for creating a PRT then, even if you give the tenant an agreement for any other type of tenancy, the tenancy is a PRT.

Each of these conditions are explained further below.

The property is let to at least one individual person as a separate dwelling

A person

A property is regarded as having been let to an individual even where it has been let jointly to one or more individuals and a non-human legal person such as a company.

Separate dwelling

A property can still be 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

Only or main home

If a property is let jointly to more than one person, only one of those persons must occupy the property as their only or principal home.

Once a tenancy has become a PRT it does not lose that status if the tenant no longer occupies the property as their only or principal home.

The tenancy isn't excluded

Excluded tenancies

A tenancy will not be a PRT if one of the following apply:

• Low rent: A tenancy where rent of less than £6 a week is payable (excluding payments for services, repairs, maintenance or insurance) which tenancy has not previously been a private residential tenancy or an assured tenancy within the meaning of the Housing (Scotland) Act 1988.
• Shop: The let property is one which the Tenancy of Shops (Scotland) Act 1949 can apply.
• Licensed premises: The let property consists of or comprises licensed premises for the sale of alcohol for consumption.
• Agricultural land: A tenancy which includes two acres or more of agricultural land or a relevant agricultural tenancy as defined in the Agricultural Holdings (Scotland) Act 2003
• Student lets: A tenancy to a student where the landlord is either a designated educational institution or an institutional provider of student accommodation.
• Holiday lets: The occupation of the let property is for a holiday.
• Resident landlord: At the start of the tenancy the let property is the landlord's home, the landlord is resident and sharing with the tenant.
• Police housing: The landlord is the Scottish Police Authority.
• Military housing: The landlord is the Secretary of State for Defence.
• Social housing: The landlord is a local authority, a registered social landlord, a co-operative housing association or Scottish Water.
• Sublet, assigned, etc. social housing: The tenancy arises from a Scottish secure tenancy or a short Scottish secure tenancy being assigned, sublet or otherwise given up.
• Homeless persons: A tenancy granted on a temporary basis to fulfil a duty imposed on a local authority to house homeless persons.
• Persons on probation or released from prison etc.:

A tenancy for a term of less than 6 months to: (a) a tenant who is on probation or released from prison and under the supervision provided by a local authority or (b) a tenant who is on probation or released from prison and has requested advice, guidance or assistance from a local authority.

• Asylum seekers: The tenant is an asylum-seeker.
• Displaced persons: The tenant is a displaced person.
• Shared ownership: A tenancy under a shared ownership agreement.
• Tenancies under previous legislation: A tenancy under the Rent (Scotland) Act 1984 or the Housing (Scotland) Act 1988.

Setting up a private residential tenancy

To set up a PRT you must give your tenant a written copy of all the terms of their tenancy. This may be in the form of an electronic document. If you do not have a written agreement the tenancy will still be a PRT, but the terms will be decided by the First-Tier Tribunal.

There are nine statutory tenancy terms which you must include in any PRT agreement you use.

The Scottish Government has published a Model Private Residential Tenancy Agreement incorporating the nine statutory terms in mandatory clauses. The model also includes discretionary clauses. A digital version of the Model Private Residential Tenancy Agreement is available on the my gov.scot website.

Right to possession

You can only end the tenancy by using one of 18 grounds for eviction. If you decide to end the tenancy, you must serve a formal statutory notice – a Notice to Leave. This must detail the eviction ground(s), why each ground applies and the date on which the tenancy is to end.

A Notice to Quit is not required for a PRT.

To end a joint tenancy, you must serve notice to leave on all the joint tenants.

See Overview – Recovering possession in Scotland for more information.

More info on private residential tenancies

If the tenant wants to end the tenancy

Unless a longer or shorter period is agreed in writing the tenant must give at least 28 days' notice in writing to end the tenancy.

The tenant can only give notice once they have started to live in the let property. There is no minimum period before the tenant can give notice so, although unlikely, the tenant could give notice the day after taking up occupation.

If the tenant gives notice but then changes their mind before it ends, they can ask you to continue the tenancy instead. It is your decision whether to agree.

To end a joint tenancy, all joint tenants must agree to end the tenancy and sign the notice to leave. One joint tenant cannot terminate a joint tenancy on behalf of all the joint tenants.

Residents living in the property

Unless you agree it in writing, the tenant must not sublet the property, take in a lodger or give up their tenancy to someone else.

The tenant may have other people living with them in the property such as a partner, family member or carer. The tenant must tell you in writing about any person aged 16 or over who is living in the property as their only or main home. The tenant must tell you their name and their relationship to the tenant. They must let you know if that person moves out.

Tenancies before 30 November 2017

Types of tenancy

Any residential tenancy entered into between 2 January 1989 and 30 November 2017 are usually:

• assured tenancies;
• short assured tenancies; or
• common law tenant or non-tenant occupier tenancies (which are outside the scope of this guide).

Both assured and short assured tenancies require a landlord to obtain a court order to evict their tenants. The main difference between them is that a short assured tenancy is less secure for tenants. They have a right to stay in the property for the duration of a fixed-term (of not less than 6 months). After this ends, a landlord can regain possession of their property.

Note that The Private Housing (Tenancies) (Scotland) Act 2016 has made it impossible to create an assured or short assured tenancy after 30 November 2017. Existing tenancies that started before that date continue to operate, however, until they come to an end.

Exceptions to assured and short assured tenancies

Assured tenancy

These are the exceptions where a tenancy is not in an assured tenancy:

• Tenancies for business premises
• Tenancies where the premises are let to a company
• Holiday lettings
• Lettings by a resident landlord where the landlord and the tenant share the same flat or house
• Lettings to students by educational institutions and other specified persons
• Certain lettings arranged by a local authority to the homeless.

Short assured tenancies

These are the exceptions where a tenancy is not in a short assured tenancy:

• Tenancies where the premises are let to a company
• Holiday lettings
• Lettings to students by educational institutions and other specified persons
• Lettings by a resident landlord where the landlord and the tenant share the same flat or house
• Lettings where rent isn't paid
• Certain lettings arranged by a local authority to the homeless.

Setting up a tenancy before 1 December 2017

The way you set up a tenancy between 2 January 1989 and 30 November 2017 will determine whether you have an assured or short assured tenancy.

Short assured tenancy

To have created a short assured tenancy, you must have validly served a form AT5 on the tenants before the signing and commencement of the tenancy agreement; if an AT5 wasn't validly served, the tenancy agreement will be an assured tenancy (and give the tenants more security, making it harder for you to evict them).

Assured tenancies

Any residential tenancy entered into between 2 January 1989 and 30 November 2017 will automatically be an assured tenancy unless the special steps were taken to set up a short assured tenancy by serving a form AT5, as stated above.

Right to possession

Fixed-term short assured tenancies

You have a right to seek possession of your property when the fixed term of a short assured tenancy comes to an end. You need to provide 2 months' written notice to the tenants that states that you require possession of your property. This can be given before or after the tenancy ends. If they fail to leave the property when the notice expires, you must apply to the First-tier Tribunal for an eviction order.

You can only seek possession during the fixed term if certain grounds for possession apply and the tenancy agreement states that the tenancy can be ended on any of these grounds (such as rent arrears or nuisance behaviour by the tenant), or if there is a break clause (a term of the agreement that allows you to end it during the fixed term). See Overview – Recovering possession in Scotland for more information.

Assured tenancies

Assured tenancies automatically renew and you can only seek possession if certain grounds for possession apply.

Regulated tenancies

These are tenancies that were created before 2 January 1989. Tenants that have a regulated tenancy have greater rights than those in assured or short assured tenancies. This type of tenancy is outside the scope of this guide.