Private Housing (Tenancies) (Scotland) Act 2016

PART 1 — Private residential tenancy

Procedure for designating a zone: consultation and information

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• (1) A tenancy is a private residential tenancy where—

• (a) the tenancy is one under which a property is let to an individual (“the tenant”) as a separate dwelling,

• (b) the tenant occupies the property (or any part of it) as the tenant's only or principal home, and

• (c) the tenancy is not one which schedule 1 states cannot be a private residential tenancy.

• (2) A tenancy which is a private residential tenancy does not cease to be one by reason only of the fact that subsection (1)(b) is no longer satisfied.

Interpretation of section 1

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• (1) This section makes provision about the interpretation of section 1.

• (2) A tenancy is to be regarded as one under which a property is let to an individual notwithstanding that it is let jointly to an individual, or individuals, and another person.

• (3) A tenancy is to be regarded as one under which a property is let as a separate dwelling, despite the let property including other land, where the main purpose for letting the property is to provide the tenant with a home.

• (4) A tenancy is to be regarded as one under which a property is let as a separate dwelling if, despite the let property lacking certain features or facilities––

• (a) the terms of the tenancy entitle the tenant to use property in common with another person (“shared accommodation”), and

• (b) the let property would be regarded as a separate dwelling were it to include some or all of the shared accommodation.

• (5) In a case where two or more persons jointly are the tenant under a tenancy, references to the tenant in section 1(1)(b) and in subsection (3) are to any one of those persons.

Writing not required to constitute private residential tenancy

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• (1) A purported contract becomes lawfully constituted, despite not being constituted in a written document as required by section 1(2) of the Requirements of Writing (Scotland) Act 1995, when—

• (a) a person occupies a property as the person's only or principal home in pursuance of the purported contract's terms, and

• (b) the tenancy which the purported contract would create, were it lawfully constituted, would satisfy the conditions in paragraphs (a) and (c) of section 1(1).

• (2) Any term of a purported contract which is unrelated to a private residential tenancy is not to be regarded as a term of the contract for the purpose of subsection (1).

Extended meaning of tenancy in this Act

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For the purposes of this Act—

• (a) if an agreement would give rise to a tenancy but for the fact that it does not specify an ish, it is to be regarded as giving rise to a tenancy,

• (b) once an agreement has given rise to a private residential tenancy, it is to continue to be regarded as giving rise to a tenancy despite the term of the agreement requiring the tenant to pay rent subsequently being removed from the agreement or otherwise ceasing to have effect.

Extended meaning of tenancy and related expressions in other enactments

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Unless the contrary intention appears, a reference in any enactment to—

• (a) a tenancy includes a private residential tenancy,

• (b) a landlord or tenant includes a landlord or tenant under a private residential tenancy,

• (c) property being let includes property being let under a private residential tenancy,

• (d) a lease includes an agreement giving rise to a private residential tenancy.

Power to modify schedule 1

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• (1) The Scottish Ministers may by regulations modify schedule 1.

• (2) Before making regulations under subsection (1), the Scottish Ministers must consult such persons representing the interests of tenants and landlords under private residential tenancies as they think fit.

PART 2 — Tenancy terms

Statutory terms of tenancy

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• (1) The Scottish Ministers may by regulations prescribe terms (referred to in this Act as “statutory terms”).

• (2) Statutory terms are terms of every private residential tenancy to which the regulations prescribing them apply, subject to any provision made under subsection (3).

• (3) The Scottish Ministers may by regulations provide that—

• (a) in some circumstances, a statutory term is not a term of a private residential tenancy,

• (b) in some or all circumstances, a statutory term applies as a term of a private residential tenancy subject to any modification of the term agreed between the landlord and tenant under the tenancy.

Regulations under section 7

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• (1) Regulations may not be made under section 7(1) unless—

• (a) they prescribe, in relation to the tenancies to which the regulations are to apply, the terms set out in schedule 2, or

• (b) those terms are prescribed in relation to those tenancies already.

• (2) Regulations made under section 7 may not be revoked in exercise of the power conferred by that section to the extent that their revocation would result in terms set out in schedule 2 not applying in relation to some or all private residential tenancies.

• (3) Nothing in this section prevents provision being made under section 7(3) so that—

• (a) in some circumstances, a term set out in schedule 2 is not a term of a private residential tenancy,

• (b) in some or all circumstances, a term set out in schedule 2 applies subject to modification.

• (4) Before making regulations under section 7, the Scottish Ministers must consult such persons representing the interests of tenants and landlords under private residential tenancies as they think fit.

• (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Protection of terms allowing use of shared living accommodation

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• (1) A term of a private residential tenancy which entitles the tenant to use shared living accommodation may not be terminated or modified so as to reduce the entitlement which the tenant had at the commencement of the private residential tenancy, unless the tenant agrees to the termination or modification of the term after the tenancy commences.

• (2) Subsection (1) does not affect the operation of any term of the tenancy which allows the identity or number of persons in common with whom the tenant is entitled to use the shared living accommodation to change.

• (3) In this section, “shared living accommodation” means property––

• (a) which the terms of the tenancy entitle the tenant to use in common with another person, and

• (b) which is of such a nature that any let property must include it, or be treated as including it, in order to be regarded as a separate dwelling.

PART 3 — Tenancy information

Landlord's duties to provide information

Duty to provide written terms of tenancy

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• (1) Where the terms of a private residential tenancy are not set out in writing between the parties, the landlord must, before the end of the day specified in subsection (2) or (as the case may be) (3), provide the tenant with a document which sets out all of the terms of the tenancy.

• (2) The day referred to in subsection (1) is—

• (a) the day on which the tenancy commences, if the tenancy is a private residential tenancy on that day, or

• (b) the day falling 28 days after the day on which the tenancy became a private residential tenancy, if it became one after the day on which the tenancy commenced.

• (3) If, as a result of a subsequent change to its terms, all of the terms of a private residential tenancy are no longer set out in writing—

• (a) subsection (2) does not apply, and

• (b) the day referred to in subsection (1) is the day falling 28 days after the change to the tenancy's terms takes effect.

Duty to provide specified information

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• (1) The Scottish Ministers may by regulations impose a duty on any person who is, or is to be, the landlord under a private residential tenancy to provide the person who is, or is to be, the tenant—

• (a) with information specified in the regulations,

• (b) by a deadline specified in the regulations.

• (2) The power to specify information under subsection (1)(a) includes the power to specify the form in which the information is to be provided.

• (3) Before making regulations under subsection (1), the Scottish Ministers must consult such persons representing the interests of tenants and landlords under private residential tenancies as they think fit.

• (4) But subsection (3) does not apply in any case in which consultation has been carried out by the Scottish Ministers more generally, without specific reference to such tenants and landlords.

Regulations about providing information

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The Scottish Ministers may by regulations make provision about how a duty arising by virtue of section 10 or 11 is to be performed (including when the duty is to be deemed to have been performed).

Prohibition on charging for information

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The person who is, or is to be, the tenant under a private residential tenancy may not be charged for being provided by the landlord with—

• (a) a document which sets out the terms, or any term, of the tenancy, or

• (b) information in performance of a duty arising by virtue of section 11.

First-tier Tribunal's powers

Application to First-tier Tribunal to draw up terms

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• (1) The tenant under a private residential tenancy may (subject to subsection (3)) apply to the First-tier Tribunal asking it to draw up the terms of the tenancy under section 15 if the landlord—

• (a) has a duty under section 10 to provide the tenant with a document which sets out all of the terms of the tenancy, and

• (b) the landlord has not provided that document to the tenant.

• (2) Either the tenant or the landlord under a private residential tenancy may apply to the First-tier Tribunal asking it to draw up the terms of the tenancy under section 15 if the tenant or landlord thinks that the written terms of the tenancy purport to displace a statutory term in an unlawful manner.

• (3) The tenant may not make an application under subsection (1) unless the tenant has given the landlord notice of the tenant's intention to make the application and the notice period described in section 17 has expired.

• (4) For the purpose of subsection (2), written terms of a tenancy purport to displace a statutory term in an unlawful manner if—

• (a) the statutory term is not included in the written terms of the tenancy but is a term of the tenancy because regulations under section 7(3)(a) do not provide otherwise, or

• (b) the statutory term, as expressed in the written terms of the tenancy, bears to be subject to a modification which is not permitted by regulations under section 7(3)(b).

• (5) In a case where two or more persons jointly are the tenant under a tenancy, references to the tenant in this section are to any one of those persons.

• (6) In a case where two or more persons jointly are the landlord under a tenancy, references to the landlord in this section are to any one of those persons.

First-tier Tribunal’s power to draw up terms

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• (1) On an application under section 14, the First-tier Tribunal may—

• (a) draw up a document which accurately reflects all of the terms of the tenancy, or

• (b) if there are already written terms of the tenancy and the Tribunal is satisfied that they accurately reflect all of the terms of the tenancy, make a declaration to that effect.

• (2) A document that is drawn up by the Tribunal under subsection (1)(a) or is the subject of a declaration under subsection (1)(b) is to be regarded as setting out all of the terms of the tenancy at that time.

First-tier Tribunal’s power to sanction failure to provide information

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• (1) On an application by the tenant under a private residential tenancy, the First-tier Tribunal may make an order under subsection (2) where—

• (a) the landlord has failed to perform a duty arising by virtue of section 10 or 11 to provide the tenant with information,

• (b) at the time the First-tier Tribunal considers the application, the landlord has still not provided the tenant with the information, and

• (c) the landlord does not have a reasonable excuse for failing to perform the duty.

• (2) An order under this subsection is one requiring the landlord to pay the person who made the application an amount not exceeding—

• (a) three months' rent, if the order is in respect of a failure by the landlord to perform—

• (i) a duty arising by virtue of section 10, or

• (ii) one or more duties arising by virtue of section 11,

• (b) six months' rent, if the order is in respect of a failure by the landlord to perform—

• (i) a duty arising by virtue of section 10, and

• (ii) one or more duties arising by virtue of section 11.

• (3) An application under subsection (1)—

• (a) may be made only during the course of the tenancy in question,

• (b) where the application relates to a failure to perform a duty arising by virtue of section 10, may be made only as part of an application under section 14(1), and

• (c) may not be made unless the tenant has given the landlord notice of the tenant's intention to make the application and the notice period described in section 17 has expired.

• (4) If—

• (a) an application has been made under subsection (1) in respect of a failure to perform a duty arising by virtue of section 11, and

• (b) at the time the application was made, an application could have been made in respect of a failure to perform another duty arising by virtue of section 11,

no application may be made in respect of that other duty.

• (5) Where two or more persons jointly are the landlord under the tenancy in question, an order by the First-tier Tribunal under subsection (2) may—

• (a) be made against all, some or only one of the joint landlords,

• (b) state that each person against whom the order is made is liable to pay a specified amount, but the cumulative total of each of the specified amounts must not exceed the maximum set by subsection (2),

• (c) state that each person against whom the order is made is jointly and severally liable for the whole amount to be paid.

• (6) In a case where two or more persons jointly are the tenant under a tenancy, references to the tenant in this section are to any one of those persons.

• (7) In subsection (2), “rent” means––

• (a) the amount that was payable in rent under the tenancy at the time that notice of the application was given to the landlord, and

• (b) in a case where two or more persons jointly are the tenant under the tenancy, the amount mentioned in paragraph (a) divided by the number of those persons.

Meaning of notice period in sections 14 and 16

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• (1) For the purposes of sections 14(3) and 16(3)(c), a notice period—

• (a) begins on the later of—

• (i) the day that the landlord receives notice from the tenant of the tenant's intention to make the application in question, or

• (ii) the day after the deadline by which the landlord should have performed the duty to which the application in question relates, and

• (b) expires on the day falling 28 days after it begins.

• (2) Where the application in question relates to a failure by the landlord to perform more than one duty, the reference to the duty in subsection (1)(a)(ii) is to be read as a reference to the duty with the latest deadline for performance.

• (3) A notice of a tenant's intention to make an application under section 14(1) or 16(1) must fulfil any requirements prescribed by the Scottish Ministers in regulations.

PART 4 — Rent

CHAPTER 1 — Restrictions in relation to rent, other charges and diligence

Restrictions on rent increases

Method by which rent may be increased

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The rent payable under a private residential tenancy may be increased only in accordance with Chapter 2.

Frequency with which rent may be increased

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• (1) The rent payable under a private residential tenancy may not be increased more than once in a 12 month period.

• (2) For the purpose of subsection (1), in a case where the last rent increase resulted from an order of the rent officer or the First-tier Tribunal, the 12 month period is to be regarded as commencing on the date on which the rent would have been increased in accordance with section 22(4) had a referral to a rent officer not been made.

Restrictions on other charges and diligence

No premiums, advance payments, etc.

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• (1) Sections 82, 83 and 86 to 90 of the Rent (Scotland) Act 1984 apply in relation to a private residential tenancy as they apply in relation to a tenancy of the kind to which those sections refer.

• (2) But—

• (a) section 83(5) of that Act is to be ignored,

• (b) the date mentioned in section 88(1) of that Act is to be read as if it were the date on which this section comes into force.

Restriction on diligence

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Except with the leave of the First-tier Tribunal, no diligence is to be done in respect of—

• (a) the rent due by a tenant or former tenant under a private residential tenancy,

• (b) any liability of a tenant or former tenant arising under section 31.

CHAPTER 2 — Rent variation instigated by landlord's notice

Process by which rent may be varied

Landlord’s power to increase rent

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• (1) The landlord under a private residential tenancy may increase the rent payable under the tenancy by giving the tenant a notice in accordance with this section (“a rent-increase notice”).

• (2) The notice must––

• (a) specify––

• (i) the rent that will be payable once the increase takes effect,

• (ii) the day on which the increase is to take effect, and

• (b) fulfil any other requirements prescribed by the Scottish Ministers in regulations.