Types of tenancy
Types of private tenancy
If you rent from a private landlord, and you are not sharing living space with her/him, and your lease began before December1st 2017 you will probably be either an assured or short assured tenant. This is explained below.
As of December 1st 2017 you will usually have a Private Residential Tenancy (PRT). This is a new type of tenancy which will eventually replace existing tenancy types. You can find out more on the website of Shelter Scotland.
Short assured tenancies
These are the most common private rented tenancy type. You will have one, if:
- your tenancy started after 2 January 1989, and
- the place where you live is rented as a home, and
- it is your only or main home, and
- you received a notice (an AT5 form) before signing the tenancy agreement telling you that it is a short assured tenancy, and
- your tenancy is for at least six months.
If you did not get an AT5 form at the start of your tenancy, or it is for less than six months, you will have an assured tenancy (even if your landlord intended to provide a short assured tenancy).
What happens when the tenancy comes to an end?
A Short Assured Tenancy will state how long it is for. It will automatically renew itself unless you have given written notice that you wish to leave at the end of the tenancy period or your landlord has given written notice that they wish to end the tenancy. By creating a Short Assured Tenancy, a landlord has the option of ending the tenancy at the end of a minimum period, without needing a specific reason (such as a breach of the tenancy conditions). If the landlord wants you to leave at the end of the initial period, you must be given proper notice. For more information see the section on eviction.
If you wish to end the tenancy you must give written notice. If you wish to leave before the tenancy comes to an end you should check your tenancy agreement to see if you can do this Even if there is nothing in your tenancy agreement which permits you to leave before the end of the tenancy period you may be able to come to an agreement with your landlord. If you cannot come to an agreement you should give written notice stating that you wish to leave at the end of the tenancy. The minimum notice you have to give is (if the notice is not stated on the lease) is:
- 40 days if your tenancy is for six months or longer
- 28 days if your tenancy is continuing on a month to month basis after the original period has expired.
If you leave your tenancy without giving proper notice, or before the end of the tenancy, you will still be liable for the property and the rent. If neither you nor your landlord has given notice, your tenancy will renew itself. This will be for the same length of time, unless your tenancy agreement says that it will be for a different period. If the initial tenancy was for a year then it must review itself for a further year.
You will probably have an Assured Tenancy if:
- your tenancy started after 2 January 1989, and
- before the tenancy started you were not given an AT5 notice stating that your tenancy is a short assured tenancy, and
- you're renting the property as a home, and
- it's your only or main home.
How long is my tenancy for?
Your tenancy agreement will say how long your tenancy is. Your tenancy will automatically renew itself unless:
- you have given the landlord notice that you want to leave, or
- the landlord has given you notice that you must leave (because you have broken the terms of your agreement)
A landlord cannot end an Assured Tenancy to an end simply because it reached its end date. For more information see the section on eviction. If you wish to end the tenancy you must give written notice. If you wish to leave before the tenancy comes to an end you should check your tenancy agreement to see if you can do this. Even if there is nothing in your tenancy agreement which permits you to leave before the end of the tenancy period you may be able to come to an agreement with your landlord. If you cannot come to an agreement you should give written notice stating that you wish to leave at the end of the tenancy. The minimum notice you have to give is (if the notice is not stated on the lease):
- 28 days if your tenancy runs on a month to month basis or
- less than 40 days if your tenancy is for longer than three months.
If you leave your tenancy without giving proper notice, or before the end of the tenancy, you will still be liable for the property and the rent. Your Landlord cannot force you to vacate a property, without a Court Order. Any other actions on behalf of the Landlord could be seen as Harassment and/or Illegal Eviction. Even after the expiry of the tenancy dates and/or a Notice to Quit date, you may remain living in a property until a Court directs otherwise. For more information, see our topic on Eviction
What are Private Residential Tenancies?
Tenancies of separate dwellings, beginning after 1st December 2017 are likely to be Private Residential Tenancies, which are not for a fixed term. Private Residential Tenants have more protection, because the landlord can only seek to end the tenancy if one of 18 grounds apply (not just because he or she wishes to end the tenancy).
How can PRTs be ended?
The landlord must issue a notice if he or she wishes to bring a PRT to an end. This notice must say which of the 18 specific grounds for eviction apply.These grounds relate to:
- The landlord needing the property for another purpose, or to sell it;
- A change in the tenants' status, which would mean they no longer require specific facilities (such as supported housing);
- The tenant's behaviour (including rent arrears);
- It being illegal for the landlord to continue to rent out the property (for example if it is no longer of a habitable standard).
The full list of grounds are in Schedule 3 of the Private Housing (Tenancies) (Scotland) Act 2016.
If you are served with a notice, and you move out of the property (either when the notice expires, or before), the tenancy comes to an end. If you stay on, the landlord can apply to the First Tier Tribunal, who will issue an eviction order, if the landlord can show that one or more of these grounds applies. The Tribunal cannot issue an eviction order under any other ground.
- Sub-tenants - If there are people in the property who are sub-tenants of the main tenant, the Tribunal can include them in the eviction order, but must allow them the chance to have their say first.
- Wrongful Termination Order - If it can be shown that the Tribunal was misled into issuing an eviction order by the landlord, the Tribunal can be asked to issue a 'Wrongful-Termination Order'. This would require the landlord to pay damages of up to 6 months' rent (the Tribunal decides the amount).
Also, if the landlord misleads a Private Residential Tenant into leaving the property during (or at the end of) the notice period, so that the tenancy automatically ends, the former tenant can ask the Tribunal to issue a 'Wrongful-Termination Order'.
When the Tribunal issues a 'Wrongful-Termination Order', the local Council receives a copy. This could affect the landlord's ability to rent property in the future