Scottish Government

5. TENANCY REGIME

Background

5.1 The proposals relating to the tenancy regime in the private rented sector have been developed largely in response to issues that came out of the Scottish Government's Review of the Private Rented Sector in Scotland. The Review found that the tenancy regime was generally operating satisfactorily although there were sometimes problems around getting repairs done (from both tenant and landlord perspectives). There was also some lack of clarity regarding procedures for regaining possession of properties, along with a more general lack of knowledge of rights and responsibilities among both many tenants and many landlords.

5.2 The proposals contained within this section of the consultation document are designed to address some of these issues and covering the following:

• Enforcing landlords' rights to access their property to meet the requirements of the Repairing Standard;
• Facilitating landlords' rights to inspect and gain possession of the property in abandonment cases;
• Pre-tenancy information packs;
• Simplification of pre-tenancy notices;
• Pre-tenancy charges - clarification of payment of premiums to agents and landlords; and
• Clarification of possession procedures, including the issuing of Notices of Proceedings.

Enforcing landlords' rights to access their property to meet the requirements of the Repairing Standard

5.3 These proposals stem from landlords' concerns about being unable to gain access to their property in certain circumstances, particularly in order to carry out repairs. It is suggested that a landlord should have the right to apply to the Private Rented Housing Panel ( PRHP) when in dispute with a tenant about gaining access to the property in relation to the Repairing Standard, with the PRHP being given powers to help landlords to gain access. A member of the PRHP could accompany the landlord to the property, if necessary, to ensure that the necessary work was carried out. The tenant could have the right to ask for a member of the PRHP to accompany the landlord.

Question 4.1: Should a landlord have the right to apply to the Private Rented Housing Panel when in dispute with a tenant about gaining access to the property in relation to the Repairing Standard, with the Panel being given powers to enforce access?

Table 56 Question 4.1 - Total Responses

Table 57 Question 4.1 - Group Responses by Type of Respondent

5.4 With 57 out of the 65 respondents that answered this question in agreement, there was a strong level of support for the proposition that a landlord have the right to apply to the Private Rented Housing Panel when in dispute with a tenant about gaining access to the property in relation to the Repairing Standard.

5.5 As noted above, many other respondents also agree with the PRHP taking on this role, including all the individual respondents and the clear majority of group respondents. However, a number of respondents noted the need to balance the rights of landlords with the rights of tenants and that landlords should be required to take clear and sufficient steps to contact the tenant and gain access before approaching the PRHP (including EUSA, Shelter Scotland and City of Edinburgh Council).

5.6 West Lothian Council raised the issue of the resources that would be required by the PRHP to carry out such a role and suggested that to undertake this role effectively the PRHP would effectively require to replaced or remodelled as a Housing Tribunal.

5.7 Respondents that did not agree with the proposal sometimes noted their support for access being enforced with a court order (including PAiH and Aberdeen City Council). While acknowledging landlords' concerns, Glasgow City Council suggested that the courts are accessible and orders can be obtained within a reasonable timescale. Govan Law Centre also reported being unconvinced that the proposed system would be any easier than obtaining a court order.

Suggested Additions or Changes

5.8 Suggested changes or additions to this section of the proposals included:

• Landlords should have to demonstrate that reasonable steps have been taken to gain access as part of the application process to the PRHP (City of Edinburgh Council);
• Landlords should be required to inform the tenant of their intention to apply to the PRHP and give the tenant a final chance to allow access ( EUSA);
• The tenant concerned should receive a copy of the application to the PRHP and be entitled to make representations to the panel (Renfrewshire Council, UNISON and GUSRC);
• The PRHP should contact the tenant and ask why they think access should not be granted ( CFS); and
• The PRHP should be given powers to mediate between the two parties but not the powers to enforce access (Highland Council).

Question 4.2: If a tenant still refused to allow access, how should the right of access be enforced ( e.g., by court order or by giving the PRHP the right to enforce the entry by means of a warrant)?

Table 58 Question 4.2 - Total Number of Comments Made

5.9 Among those that commented there was overwhelming support for the PRHP having the powers to enforce the right of action, with some respondents explicitly stating this should be through warrant. Of the 46 comments that could be analysed, 31 supported the enforcement of entry by warrant. Support for this approach was often based on an assumption that this would be the simplest and most cost effective way of ensuring access is gained as quickly as possible. Those supporting the enforcement role for the PRHP included 12 local authorities, SCSH, CIH Scotland, CFS, SAL, SRPBA and 5 individuals.

5.10 However, 11 respondents preferred the use of a court order (including Shelter Scotland, GWSF, GUSRC, Turcan Connell, 3 local authorities and 2 individuals).

5.11 A further 2 respondents (City of Edinburgh Council and St Andrews SA) suggested that if the PRHP has already considered the need for access it should be considered as a matter which the PRHP could pursue, with the court still available to the landlord if the PRHP is unsuccessful. Dundee City Council suggested that if object of the approach is to speed up the process, access should either be enforced by the PRHP or through a 'fast track' Court process instigated by the PRHP.

Question 4.3: If a landlord was successful in such an application, should the tenant be able to request that a member of the Private Rented Housing Panel accompanies the landlord or a person authorised by the landlord when entering the property?

Table 59 Question 4.3 - Total Responses

Table 60 Question 4.3 - Group Responses by Type of Respondent

5.12 There was broad support for the tenant being able to request that a member of the Private Rented Housing Panel accompanies the landlord or a person authorised by the landlord when entering the property. However, a significant proportion of the 50 out of 60 respondents that supported the proposal suggested that while it was important that the tenant had the right to have a representative attend this did not necessarily have to be a representative of the PRHP (including Scottish Borders Council, Perth and Kinross Council, West Lothian Council, SDEF, CIH Scotland and SAL).

5.13 SCSH and Crisis suggested that somebody nominated by the Panel could be a suitable alternative to a Panel member. Some other respondents suggested that a representative from the local authority could also fulfil this role (including East Ayrshire Council, Perth and Kinross Council, West Lothian Council and CIH Scotland).

5.14 Some of those that did not support the proposal felt the plan to be generally unnecessary and resource intensive, although suggested that there could be occasions in which exceptions should be made (including ARLA and Clackmannanshire Council). The SRPBA was concerned that the proposal implies that tenants need to be protected from landlords. They also noted that there is nothing to stop a tenant from inviting another third party to be present if they wish.

Question 4.4: How should this additional work for the PRHP be funded?

Table 61 Question 4.4 - Total Number of Comments Made

5.15 Views were divided as to how any additional work by the PRHP should be funded, with some suggesting who should pay and some suggesting who should not. In summary:

• 6 respondents felt the function should be paid for through central government funding (Shelter Scotland, ARLA, UNISON, Highland Council, Renfrewshire Council and Falkirk Council);
• 3 respondents suggested that the principle of 'fault' should be taken into account, and the party responsible for causing the problem pay appropriate fees (Hillhead Community Council, Countrywide Residential Lettings and Belvoir Lettings);
• 8 respondents suggested the landlord concerned should pay a fee (Dundee City Council, City of Edinburgh Council, Aberdeenshire Council, CFS, GUSRC, GWSF, Govanhill Housing Association and Cathcart and District Community Council;
• 3 respondents suggested the tenant should pay, either directly or through deduction from deposits (West Lothian Council, Angus Council and Perthshire Property Services);
• 2 respondents stressed that tenants should not be required to pay ( SCSH and Crisis); and
• 3 respondents stressed that landlords should not be required to pay ( NFOPP, SRPBA and the PRHF).

Facilitating landlords' rights to inspect and gain possession of the property in abandonment cases;

5.16 Currently, if a tenant abandons a property a landlord has to gain a court order for possession before they can assess and deal with any damage, possibly start court proceedings to recover money to cover that damage and re-let the property. Since there is evidence that many landlords do not actually get a court order, technically a tenant could return several months later and the landlord charged with illegal eviction.

5.17 These proposals suggest similar abandonment processes to those that social landlords are required to follow, with private landlords able to give a notice period in cases of suspected abandonment. It is suggested that the landlord would have to apply to a third party for permission to serve a 28 day notice to regain possession. The landlord would have to provide evidence of suspected abandonment.

5.18 In the social rented sector a tenant can raise court proceedings within 6 months of repossession; these proceedings can result in the landlord having to make alternative accommodation available to the tenant. As this would not be a realistic requirement to place on most private rented sector landlords, it is proposed that local authorities should have a duty to re-house a tenant who returned within 6 months.

Question 4.5: Should a private landlord be able to present appropriate evidence of abandonment to an authorising body in order to obtain permission to inspect a possibly abandoned property and then to serve a notice to regain possession of it?

Table 62 Question 4.5 - Total Responses

Table 63 Question 4.5 - Group Responses by Type of Respondent

5.19 Overall respondents were supportive of this proposal with 51 out of the 60 respondents that answered this question in agreement. This included all of the individual respondents and 43 out of the 52 group respondents.

5.20 Many respondents supported the view that the abandonment process for the private rented sector should broadly reflect those for the social rented sector (including Angus Council, Glasgow City Council, Perth and Kinross Council, Highland Council, South Lanarkshire Council, CIH Scotland and SAL).

5.21 However, some respondents suggested that court action remains the appropriate route to gain possession in the private rented sector (including Fife Housing Partnership and Clackmannanshire Council). Shelter Scotland would like the Scottish Government to look more carefully at the evidence that possession in these circumstances is taking too long or is unduly complex and Govan Law Centre also do not accept the assertion that it takes 6 months to obtain a decree in respect of abandoned properties.

5.22 Shelter Scotland reported that in the experience of their housing law service and housing aid centres the problems that landlords encounter in regaining possession are often a product of leases not being written properly and that if a contract is properly drawn up, the time it takes to pursue recovery through the court does not extend to six months, and the risk of illegal eviction is remote if the landlord has acted diligently in finding out if their tenant is still occupying. They would like the Scottish Government to provide further verifiable evidence that landlords with well written tenancy agreements are experiencing lengthy delays in seeking possession through the courts.

Suggested Additions or Changes

5.23 Suggested changes or additions to this section of the proposals included:

• Additional safeguards should be offered to tenants through a prescribed form of notices which should be served by sheriffs officers on behalf of the landlord ( GWSF);
• After the second notice has been served the landlord must obtain a court decree terminating the tenancy on the ground of abandonment. This could be by way of summary application or it could be done by way of summary cause at the heritable court (Glasgow City Council and GWSF);
• The Scottish Government should consider how potentially vulnerable tenants could be affected by the proposals including those with literacy problems, people with mental health issues and those staying in a hospital or institution for long periods ( SDEF);
• This matter would be better dealt with by a Housing Tribunal (West Lothian Council); and
• If it is the case that landlords are not protecting themselves sufficiently in drawing up tenancy agreements, then the response should be to offer training to landlords to help them, rather than providing a route to enable them to evict more easily (Shelter Scotland).

Question 4.6: What would be the appropriate evidence for a landlord to collect and present in order to show that a property has been abandoned?

Table 64 Question 4.6 - Total Number of Comments Made

5.24 A number of respondents made specific suggestions about the types of evidence that would be appropriate to present in order to show a property had been abandoned. Some respondents made the general point that levels and types of evidence should be similar to those for the social rented sector (including East Dunbartonshire Council, Perth and Kinross Council, East Renfrewshire Council, Scottish Borders Council, GWSF, Pollockshaws and Eastwood Community Council and SCSH).

5.25 Specific suggestions included:

• Missed rent payments;
• Evidence of low or no usage of utilities;
• Rubbish bins not being used/put out for collection;
• Statements provided by neighbours;
• Photographs showing that the property is vacant, property/furniture has been removed;
• Door seals (to indicate whether they have been opened);
• Whether vehicles associated with the property have been witnessed or moved;
• Evidence from the local authority relating to Council Tax, Local Housing Allowance and in particular whether these are being paid against another property;
• A record of attempts to make contact with supporting evidence where possible, including lack of response to calling cards; and
• Evidence of uncollected Recorded Delivery mail.

5.26 Some respondents also outlined some of the checks that would be required. Suggestions included:

• Hospital admission checks;
• Police, court and prison checks;
• Contact with schools (if there were children living in the property); and
• Contact with any next of kin for whom details have been provided.

Question 4.7: Do you agree that the possession notice should give 28 days notice?

Table 65 Question 4.7 - Total Responses

Table 66 Question 4.7 - Group Responses by Type of Respondent

5.27 Most respondents (46 out of the 58 that answered the question) agreed with the proposed 28 day possession notice. Again, many felt it was appropriate to have similar processes to those for the social rented sector (including East Lothian Council, Clackmannanshire Council, Inverclyde Council and CFS).

5.28 Among those that did not agreed some felt the period to be too long and some too short:

• Some respondents suggested the 28 day period was too short. For example, The City of Edinburgh Council proposed a 40 day period while GUSRC noted that students are often away from rented properties during vacations and for this reason propose a 3 month notice period; and
• Some letting agent respondents felt the 28 period was too long and either suggested that the period be reduced to 14 days or if the property had clearly been abandoned, that no notice should be required (Countywide Residential Lettings, Belvoir Lettings, Perthshire Property Services and 2 individual respondents).

Suggested Additions or Changes

5.29 Suggested changes or additions to this section of the proposals included:

• A longer notice period, with suggestions ranging from 40 days to 12 weeks (including City of Edinburgh Council, Crisis, Govan Law Centre and GUSRC);
• A shorter notice period, with suggestion ranging from no notice to 14 days (Countywide Residential Lettings, Belvoir Lettings and Perthshire Property Services);
• An abandonment rather than a possession notice should be served ( SCSH); and
• Consideration should be given as to how tenants can be made aware that a notice has been served ( CFS).

Question 4.8: Which body should provide authorisation in such cases ( e.g., the local authority, the Private Rented Housing Panel, the sheriff, etc)?

Table 67 Question 4.8 - Total Number of Comments Made

5.30 Very much in line with the balance of responses relating to enforcing access for repairs, the majority of respondents that stated a preference for a particular organisation suggested that authorisation should lie with the PRHP (including 10 local authorities, SAL, NFOPP, ARLA, Crisis, Orchard and Shipman and 3 individual respondents). The SRPBA noted that while in principle they would suggest the PRHP should be the authorising body some of their members have expressed concerns about whether the PRHP would be able to deal with what would be a judicial matter.

5.31 A number of respondents suggested that the Sheriff Court would be the appropriate authorising body (including Fife Housing Partnership, Glasgow City Council, GWSF, PAiH, CFS, Govanhill Housing Association, GUSRC and University of St Andrews SA).

5.32 A further 9 respondents suggested it would be appropriate for the local authority to provide authorisation (including Scottish Borders Council, Perth and Kinross Council, Inverclyde Council, Edinburgh Cyrenians, Cathcart and District Community Council and Marchmont and Sciennes Community Council).

5.33 Some of the local authority respondents that felt they should be responsible for authorisation noted their statutory responsibilities relating to homelessness and the possible relationship between these two functions.

Suggested Additions or Changes

5.34 Suggested changes or additions to this section of the proposals included:

• Legal advice should be taken as to whether the PRHF could deal with this matter ( SRPBA).

Question 4.9: If the Private Rented Housing Panel were to be the authorising body, how should this work be funded?

Table 68 Question 4.9 - Total Number of Comments Made

5.35 Again, respondents' views here broadly mirrored those expressed with regard to the funding of any enforcement of access role to be taken on by the PRHP.

5.36 The largest number of respondents (10 out of the 35 that made an analysable comment) suggested that the work should be funded by the Scottish Government, either through existing or additional resources (including Renfrewshire Council, Falkirk Council, the Moray Council, ARLA, NFOPP, PRHF, SCSH, UNISON and 2 individuals).

5.37 A further 8 respondents made a connection with landlord registration and HMO licensing fees and suggested that the work should be funded through these fees. Some respondents suggested these may have to be increased if they are effectively to be used to fund an enhanced service provided by the PRHP (including East Lothian Council, Crisis and UNISON).

5.38 Of the remaining respondents, 10 felt that landlords should bear the costs (including Aberdeen City Council, Aberdeenshire Council, City of Edinburgh Council and GWSF). Dundee City Council considered it would be reasonable for the landlord to pay the fee because they will be able to re-let their property more quickly and should thus incur fewer losses. Only one individual respondent suggested the tenant should pay, although 3 respondents suggested that fees should be charged to the party at fault (be that the landlord or the tenant).

5.39 Finally, a small number of respondents suggest a similar question about funding arrangement could be asked if the local authority were to be the authorising body (including Comhairle nan Eilean Siar, Highland Council and SCSH).

Question 4.10: Do you agree that, where the landlord had gained possession but it transpired that tenant had not actually abandoned the property and returned within six months, the local authority should have a duty to re-house the tenant?

Table 69 Question 4.10 - Total Responses

Table 70 Question 4.10 - Group Responses by Type of Respondent

5.40 Support for this proposal was limited, with only 25 out of the 59 that answered this question apparently agreeing that, where the landlord had gained possession but it transpired that tenant had not actually abandoned the property and returned within six months, the local authority should have a duty to re-house the tenant.

5.41 However, these figures do need to be viewed with a degree of caution; the analysis of further comments made suggests that respondents have interpreted this question in different ways. In particular, some respondents considered that this proposal would impose additional duties to statutorily homeless households, while others considered these proposals simply reflect existing duties. The situation is further complicated because some respondents have answered 'yes' because the local authority already has some duty to households in these circumstances, while others have answered 'no' for this same reason. In summary, therefore:

• Some respondents agreed that local authorities should have such a duty if they were found to do so at statutory homeless assessment and hence agreed with the proposal (including Scottish Borders Council and SCSH);
• Some suggested that individual circumstances would need to be considered on a case by case basis (including Glasgow City Council, Highland Council and The Moray Council);
• Others disagreed with the proposal because they felt it implied additional responsibilities over and above those relating to homelessness, although they acknowledged that local authorities would still have homelessness related responsibilities to tenants under these circumstances (including East Lothian Council, East Dunbartonshire Council, City of Edinburgh Council and Aberdeen City Council);
• Some respondents noted that under some circumstances the tenant could be considered to have made themselves intentionally homeless, with the associated implications for the local authorities duties to that tenant (including Aberdeen City Council, West Lothian Council, Inverclyde Council, Renfrewshire Council, CIH Scotland and SAL);
• SCSH stated that, if making a homelessness application, tenants should not be deemed to be intentionally homeless;
• East Lothian Council, Falkirk Council, Perth and Kinross Council and CIH Scotland had concerns that this proposal could open up a potential route to circumvent social housing allocation processes (in effect that it could be used to 'get round the waiting list'). South Lanarkshire Council suggested this proposal could effectively introduce a new class of applicant for social housing;
• Govan Law Centre strongly disagreed with the proposal and suggested that it effectively creates a new category of priority need and the only one with a specified period of time in which someone must be rehoused. They are concerned that this could effectively mean that a tenant whose tenancy had been wrongfully terminated through the abandonment process but who would not otherwise be in priority need will be re-housed before those who are homeless for another reason and in priority need. They suggest that the local authority's duty towards homeless people should not be related to the reason why they became homeless;
• Highland Council suggested that if a tenant believes their landlord has repossessed their tenancy unreasonably, they should be required to raise proceedings against that landlord; and
• Dundee City Council, Glasgow City Council, East Dunbartonshire Council and GWSF suggested that the first duty to re-house should still lie with the private landlord.

5.42 Overall, the clear balance of opinion appears to be that, where the local authority has duties to the tenant under current homelessness legislation those duties must of course be met, but that no additional requirements should be placed on local authorities.

Question 4.11: Please describe any specific safeguards that you think should be in place.

Table 71 Question 4.11 - Total Number of Comments Made

5.43 A number of respondents suggested specific safeguards that should be put in place, although a small number of respondents re-emphasised their concerns about the proposals more generally. For example, Govan Law Centre does not believe their concerns about the proposals can be addressed by the introduction of safeguards. Fife Housing Partnership and Glasgow City Council suggested that such cases should continue to be treated as recovery of possession cases in the Sheriff Court and that an additional ground (for example, not requiring the tenancy to be a "statutory assured tenancy") may be required to do this.

5.44 Suggestions for safeguards that were made included the following:

• Glasgow City Council, East Ayrshire Council, Angus Council and Crisis suggested that the abandonment procedures and the consequences of abandoning property should be clearly explained to tenants. CFS, Govanhill Housing Association and GWSF suggest this type of information, along with information on tenants' rights, could be included within any pre-tenancy information pack;
• A number of respondents suggested that tenancy agreements make it clear that tenants are required to advise the landlord of long periods of absence (including Scottish Borders Council, Aberdeenshire Council, Edinburgh Cyrenians and Orchard and Shipman);
• Renfrewshire Council and UNISON suggested that the PRHP should have the powers to refuse the repossession notice if reasonable enquiries have not been made;
• West Lothian Council suggested that no action can be taken to regain possession during the period of the tenancy whilst the rent continues to be paid according to the term of the tenancy agreement;
• GUSRC would like to see landlords give a three month notice period in cases of suspected abandonment;
• Perth and Kinross Council suggested that, in line with their response at Question 4.8, if the process is overseen by the local authority then this should minimise the scope for landlords to abuse the provisions; and
• A number of respondents suggested that the landlord should be required to store any possessions left in the property (including East Lothian Council, Aberdeen City Council , City of Edinburgh Council, CIH Scotland, PAiH and Hillhead Community Council). Some suggested that similar arrangements to those applying to social rented sector landlords should apply. For example, the landlord should be required to store any possessions for 6 months and that the PRHP would have a duty to ensure landlords comply with this.

Question 4.12: Have you any other comments on the proposed process?

Table 72 Question 4.12 - Total Number of Comments Made

5.45 The following were among the additional comments made:

• Angus Council suggested that there should not be a presumption that the local authority or other social landlord should act as a safety net where an individual's actions create a need;
• East Ayrshire Council suggested that a duty to follow appropriate procedures should be placed on landlords (including notifying the local authority) and that landlords should be made aware that failure to follow correct procedures could jeopardise their registration;
• Dundee City Council commented that there is some risk of abuse of the system by both landlords seeking to recover possession and tenants seeking to obtain a social tenancy;
• Belvoir Lettings suggested that the proposed system sounds much like the English system and that, while there have to be safeguards for tenants, the process needs to be streamlined;
• Pollockshaws and Eastwood Community Council noted that the social sector has 'perfected' the recovery of abandoned properties over many years and this could be used as a template for the private sector. However, Fife Housing Partnership suggested it would be preferable if the process were not modelled on the abandonment procedure for Scottish Secure Tenants (which in their experience has issues and problems in practice);
• However, Govan Law Centre reported that they are often shocked to discover the circumstances under which social rented sector tenancies have been deemed to be abandoned but noted that they have been able to secure the return of a tenant to their original accommodation on several occasions. However, they fear this will not be possible with private landlords and are extremely concerned that these proposals would allow the easy eviction of tenants and be used as a 'backdoor' to eviction by unscrupulous landlords;
• Clackmannanshire Council suggested there will be a need to look at the qualifications of the Panel if they were to be given the responsibility to replicate what is a long established legal process; and
• While believing that the attempt to regularise arrangements for dealing with abandoned tenancies is reasonable, Highland Council is concerned about the resource implications of these proposals.

Pre-tenancy information packs

5.46 This part of the proposals covers the possible introduction of an obligation on landlords and agents to provide tenants with an information pack at the start of a tenancy. It is suggested that such packs could play a key role in raising tenants' awareness of their rights and responsibilities.

Question 4.13: Do you consider that landlords and letting agents should be required to issue a standard information pack to the tenant at the start of the tenancy, with Ministers having the power to specify the information that must be included in it?

Table 73 Question 4.13 - Total Responses

Table 74 Question 4.13 - Group Responses by Type of Respondent

5.47 There was strong support for the introduction of pre-tenancy information packs with 56 out of the 66 respondents in agreement with this proposal. This included 50 out of 56 group respondents and all of the local authority respondents that answered this question. The opportunity to promote further consistency of practice between the social and private rented sectors or within the private rented sector was again seen as beneficial (including Scottish Borders Council, Aberdeenshire Council, Perth and Kinross Council, CFS and CIH Scotland).

5.48 A number of respondents noted that provision of this type of information should simply be considered to be good practice and that many landlords or agents will already be providing such packs (including Clackmannanshire Council, North Ayrshire Council and SCSH). EUSA reported that many landlords and agents do indeed hand out such packs but that others do not.

5.49 There were some concerns that that the provision of the pack should not become too onerous or its contents over-prescriptive (including ARLA, NFOPP, PRHF, Edinburgh Cyrenians, East Renfrewshire Council and Falkirk Council).

5.50 Shelter Scotland suggested linking the current pre-tenancy duties that would become part of the pack to the landlord's ability to create a short assured tenancy ( SAT). They suggested an amendment to section 32 of the Housing (Scotland) Act 1988 to add a requirement that a landlord must issue a pre-tenancy information pack in a form prescribed by Scottish Ministers in order to create a valid SAT. Shelter felt that this approach would be an effective way to incentivise landlords to deliver the pack, since not doing so in the correct form could result in them entering into a full assured tenancy by default.

Suggested Additions or Changes

5.51 Suggested changes or additions to this section of the proposals included:

• A single statement or booklet be issued by the Scottish Government and made available on-line for landlords to issue to tenants (Falkirk Council);
• The pack should be required for the property rather than the tenant (West Lothian Council and University of St Andrews SA);
• Landlords be required to send a copy of the pack they have provided, or at least a notification signed by both the landlord and tenant that the pack has been provided, to the relevant local authority ( GUSRC);
• Link the current pre-tenancy duties that would become part of the pack to the landlord's ability to create a short assured tenancy ( SAT) (Shelter Scotland);
• The Unfair Terms in the Consumer Contract Regulations 1999 may need to be considered ( NFOPP); and
• The pack should be available in a range of formats including easy read, Braille, large print, audio, DVD and BSLDVD. Templates should be available in various languages, given the over-representation of BME groups amongst privately renting tenants ( SDEF).

Question 4.14: What documents do you think should be included in such a pack?

Table 75 Question 4.14 - Total Number of Comments Made

5.52 A number of respondents stressed the need for the pack to be presented in a way that is accessible and straightforward to ensure that it will be read and understood. CFS suggested that:

"It is essential that the standard information pack is not simply a conglomeration of all the different documents that are currently provided to tenants when they rent a property from a private landlord. A new approach is needed, to ensure that tenants are given the information that they require in a format that is clear, straightforward and easy to digest".

(Consumer Focus Scotland)

5.53 The following were among the suggestions given for specific documents or information to be included in the pack:

• Standard tenancy agreement (25 respondents);
• AT5. (This would require an amendment to Part II of the Housing (Scotland) Act 1988) (9 respondents)
• An easy read version of the tenancy conditions which includes rights and responsibilities for the tenant and landlord (2 respondents);
• Details of any relevant title burdens (3 respondents);
• General information on occupancy levels and overcrowding (6 respondents);
• Information about landlord registration, landlord registration details including number (10 respondents);
• Contact details for the local authority, CAB, Shelter etc and information on where tenants can go for free, professional, independent advice (7 respondents);
• Inventory for the property (19 respondents);
• Operating instructions for appliances and heating/water systems (2 respondents);
• Guarantees for any fittings or fixtures (1 respondent);
• A plan of the garden with any areas of responsibility clearly marked (1 respondent);
• Standards for deposit return (14 respondents);
• Information about how to pay the rent (3 respondents);
• Council Tax and Housing Benefit Forms (10 respondents);
• A copy of the Repairing Standard and information about how to report repairs and timescales for responding (32 respondents);
• Information about the PRHP and its role (13 respondents);
• Copies of the gas and electrical safety certificate (28 respondents);
• Information about utilities companies/suppliers to the property (10 respondents);
• Energy Performance Certificate (10 respondents);
• Safety advice, including fire prevention (4 respondents);
• Information on the Scheme of Assistance (1 respondent);
• Contact information for the landlord/agent including how to make a complaint (6 respondents); and
• Information about any relevant local mediation schemes that are available (1 respondent).

5.54 Shelter Scotland and SCSH were among those that suggested there should be certain core requirements for the pack (for example the landlord's registration number or HMO licence, a simplified AT5, gas safety check certificate, a Repairing Standard statement and Energy Performance Certificate) and then there could be further discretionary content.

Question 4.15: What role should the Scottish Government, local authorities and other relevant public bodies have in developing the standard information pack and making it available to landlords ( e.g., online)?

Table 76 Question 4.15 - Total Number of Comments Made

5.55 The general consensus was that the Scottish Government should play a lead or significant role in developing the pack, with the work done in conjunction with a range of other organisations including local authorities, landlord representative bodies and Landlord Accreditation Scotland.

5.56 It was also generally agreed that there should be some standard content, available online and for use across Scotland. CIH Scotland suggested that any parts of the pack that need to be adapted to reflect specific landlord, property or tenancy requirements should be clearly indicated.

5.57 Some respondents suggested that the pack would also need to reflect each local circumstances and some of the content would, therefore, need to be local authority specific (including East Lothian Council and South Lanarkshire Council).

5.58 A number of respondents pointed out that much, if not all of the information required, is already available in some form (including Clackmannanshire Council, Perth and Kinross Council, East Dunbartonshire Council and Aberdeenshire Council). For example, Perth and Kinross Council noted that all the information they believe to be required is already available from their website.

5.59 CFS suggested that the pack should be piloted with both landlords and tenants before being rolled out and Govan Law Centre suggested that an advertising campaign to raise both tenant and landlord awareness about the pack should be considered.

5.60 The need for the information contained within the pack to be kept up to date was also noted (including Shelter Scotland and Falkirk Council).

Question 4.16(a): Should failure to comply with the requirement to issue a standard information pack be an offence?

Question 4.16(b): If so, what should the penalty be?

Table 77 Question 4.16(a). - Total Responses

Table 78 Question 4.16(a) - Group Responses by Type of Respondent

Table 79 Question 4.16(b) - Total Number of Comments Made

5.61 Although support for the pack itself was strong, there was less consensus as to whether failure to comply with any requirement to issue a standard information pack should be an offence. Of those that answered this question 35 out of 56 agreed that failure to comply should be an offence, although 21 disagreed, including 9 local authority respondents. A small number of respondents also suggested that this requirement would be very difficult to police (including Falkirk Council and East Dunbartonshire Council).

5.62 Shelter Scotland suggested that if supplying the pack was made a requirement of setting up an SAT, it would not be necessary to make failure to do so an offence; failure to so would simply mean that a full assured tenancy had been set up by default. However, Shelter also commented that there should be a concerted effort to ensure that landlords who are not currently giving SATs through bad practice are covered by the requirement.

5.63 Among those that did not consider it was appropriate for non-compliance to constitute an offence, 11 respondents suggested that reviewing the landlord's registration would be more appropriate (including Scottish Borders Council, Renfrewshire Council, East Ayrshire Council, Clackmannanshire Council, East Dunbartonshire Council, The Moray Council, Inverclyde Council, NFOPP, CIH Scotland, Hillhead Community Council and UNISON)

5.64 Among those that felt that failure to supply the pack should be an offence, a range of penalties were suggested. At one end of the spectrum 2 respondents suggested a Level 1 fine. A further 4 respondents supported a Level 2 fine, 3 supported a Level 3 fine and 2 supported a Level 5 fine.

5.65 Three respondents suggested a fixed penalty regime based on increments and 3 respondents that rent penalties should be applied.

Simplification of pre-tenancy notices

5.66 The proposal to simplify pre-tenancy notices is designed to address potential confusion among both landlords and tenants about the documents to be issued at the start of a Short Assured Tenancy ( SAT). It is suggested that some or all documents could be merged into one form, which could then be part of the proposed pre-tenancy information pack.

Question 4.17: Do you consider that there is scope for merging documents that need to be issued at the start of a Short Assured Tenancy into one form?

Table 80 Question 4.17 - Total Responses

Table 81 Question 4.17 - Group Responses by Type of Respondent

5.67 A majority of respondents supported the proposal to merge documents at the start of the SAT, including 35 out of 48 group respondents. However, although there was broad agreement, some reservations were expressed.

5.68 On the one hand, some respondents recognised that the current situation can create confusion (including Aberdeen City Council, East Lothian Council, Renfrewshire Council). However, there were concerns that any changes could create further confusion, particularly if the resulting document was large and unwieldy, possibly going unread by tenants (including Aberdeen City Council, Fife Housing Partnership, Clackmannanshire Council and The Moray Council). Aberdeen City Council notes that the document would need to be well designed to reduce such risks.

5.69 Although most respondents that did not support the proposals did so for relatively pragmatic reasons, SCSH took a different stance. They were clear that the SAT is intended to be an exception and therefore less straightforward than an assured tenancy (which was always intended to be the default tenancy). They note that the 1988 Act deliberately made the process for issuing a SAT more complex, because of the limited rights it affords tenants and suggest that the Scottish Government should be encouraging landlords to make more use of the assured tenancy and should not make it easier for landlords to issue the SAT with its extremely limited security of tenure.

Suggested Additions or Changes

5.70 Suggested changes or additions to this section of the proposals included:

• The current timescales for issuing the various documents may need to be reviewed (Dundee City Council).

Question 4.18: If so, please state which documents you consider could be merged.

Table 82 Question 4.18 - Total Number of Comments Made

5.71 Most respondents suggested that all required documents could be merged. Among those specifically suggested for inclusion were the AT5, Notice Grounds 1-5, the Repairing Standard statement, the Energy Performance Certificate, section 33 notice, NTQ and AT6. However, a small number of respondents suggested certain documents should remain separate including:

• The key agreement (as the tenant may not agree to the landlord holding a key) (Aberdeenshire Council);
• The AT5 form (East Dunbartonshire Council and Govan Law Centre). Crisis did not propose that the AT5 should not be included but suggested that it should be the first to appear in the order of documents;
• Dundee City Council suggested that the SAT agreement and AT5 need to remain separate but that the various other notices could be merged; and
• The SRPBA and Belvoir Lettings suggested there may be a case for dispensing with the AT5 with the latter suggesting the information provided on the AT5 could be inserted as a clause at the beginning of the lease.

Pre-tenancy charges

5.72 The proposals concerning pre-tenancy charges would make all such charges illegal, apart from exemptions for reasonable charges. They are designed to make clear the reasonable charges that agents could apply and remove the potential for some agents to charge tenants unjustifiably high administration fees.

Question 4.19: Do you agree that all pre-tenancy charges should be made illegal, apart from exemptions for reasonable charges, which would be set out in secondary legislation following further consultation?

Table 83 Question 4.19 - Total Responses

Table 84 Question 4.19 - Group Responses by Type of Respondent

5.73 This proposal received very strong support, with 54 out of 59 of those who responded in agreement, and all but one group respondent giving their support. ARLA did not agree with the proposal, noting that when done properly there is a lot of work involved in arranging a tenancy and suggesting that it is reasonable for the tenant to contribute towards these costs.

5.74 Some respondents cited examples of the types of problems they have encountered in relation to pre-tenancy charges. EUSA are aware of students who have been asked for very large administration fees and in some cases have been required to pay immediately; in essence these were not only administration but holding fees. Shelter Scotland pointed out that for those on low incomes, up-front fees can be prohibitive and may mean they are unable to take on a tenancy.

Question 4.20: Which pre-tenancy charges, if any, do you think should be exempted and therefore be legal to charge?

Table 85 Question 4.20 - Total Number of Comments Made

5.75 Eleven respondents suggested that no charges should be exempted (The City of Edinburgh Council, East Lothian Council, East Renfrewshire Council, Highland Council, Falkirk Council, The Moray Council, Inverclyde Council, Crisis, University of St Andrews SA, Govan Law Centre and one individual). A number of respondents also pointed out that rent deposits were acceptable (12 respondents).

5.76 Perth and Kinross Council suggested that landlords should bear any set up costs and, if necessary, pass them on through the rent. Clackmannanshire Council also suggested that, with the exception of the few direct costs set out in secondary legislation, overheads should be apportioned and covered through rental charges.

5.77 Among the charges that were identified for possible exemption were the following:

• Reasonable credit or tenancy reference check charges (17 respondents);
• Those pre-tenancy costs which cannot be recovered if a tenancy is not entered into (3 respondents);
• Security deposits (2 respondents);
• Rent in advance (3 respondents);
• Part or all of the costs of the Inventory (provided carried out by a member of the Association of Independent Inventory Clerks)(3 respondents);
• Specific alterations to property, fixtures or fittings where costs reasonably incurred are those agreed between the landlord and the new tenant (but not including the costs of disabled adaptations) (1 respondent);
• A small (reasonable and provably justifiable) administration fee (3 respondents);
• Reasonable documentation charges in circumstances where an existing tenant has requested a change ( e.g. introduction of partner as new joint tenant) (1 respondent); and
• A holding deposit to remove a property from the market. In a cancellation situation there would be recompense to a landlord for monies spent on advertising for the aborted application along with the agents time and costs is not unreasonable. Any surplus should be refunded to the prospective tenant (2 respondents).

5.78 Both the SRPBA and PRHF noted that there can be considerable variations in levels of charges for some of these functions (such as taking up tenancy references) and suggested that a maximum level of fee could be considered.

Question 4.21: How should the making of illegal pre-tenancy charges be dealt with?

Table 86 Question 4.21 - Total Number of Comments Made

5.79 Suggestions made as to how illegal pre-tenancy charges should be dealt with included:

• Through the Small Claims Courts and Consumer Protection laws (2 respondents);
• By a report to the Procurator Fiscal (7 respondents);
• By fixed penalty notice (17 respondents);
• By being taken into consideration when applying the fit and proper person test and leading to possible de-registration (17 respondents);
• Could be raised with the PRHP which could be empowered to take action (1 respondent);
• Via a Repayment Order (8 respondents); and
• By the landlord being required to repay the tenant or potential being required to repay the tenant or potential tenant a sum of money which could be set at three times the illegal fee that was initially charged (1 respondent).

Clarification of possession procedures, including the issuing of Notices of Proceedings.

5.80 The final proposal relating to the private rented sector covered the ending of a tenancy and proposed that the legislation be amended to clarify that a Notice of Proceedings is required to be issued to a tenant in a short assured tenancy. There is also a proposal to clarify possession procedures in short assured tenancies as a whole with one clearly worded notice to be issued to tenants when the landlord seeks possession.

Question 4.22: Do you agree that it should be made clear in legislation that a Notice of Proceedings is required to be issued to a tenant in a short assured tenancy?

Table 87 Question 4.22 - Total Responses

Table 88 Question 4.22 - Group Responses by Type of Respondent

5.81 There was very strong agreement that it should be made clear in legislation that a Notice of Proceedings is required to be issued to a tenant in a short assured tenancy. By and large, the opinion was that there is a lack of clarity and that a better understood and simpler system would be in the best interests of all concerned (including Angus Council, Glasgow City Council, Aberdeenshire Council, Perth and Kinross Council, East Renfrewshire Council, Falkirk Council and SDEF).

5.82 Fife Housing Partnership did not agree and suggested that most current opinion suggests that no notice of proceedings ( AT6) is required if the landlord is proceeding under section 33 of the Housing (Scotland) Act 1988 ³. While agreeing that further clarity is required, the SRPBA also noted that feedback from their members strongly suggests that an AT6 is not required when terminating a short assured tenancy at its ish, although notice in terms of the Sheriff Court (Scotland) Act 1907 and Notice under Section 33 of the Housing (Scotland) Act 1988 are both required. Turcan Connell also agreed that a Notice of Proceedings is not required when a SAT is being ended at its ish.

5.83 However, Govan Law Centre stated that the requirement to serve a notice of proceedings is currently contained in s19 of the Housing (Scotland) Act 1988 which states that the sheriff cannot entertain proceedings for possession of a house "let on an assured tenancy" unless a notice of proceedings is served ⁴.

5.84 Highland Council understands the desire to clarify this issue but has concerns that receiving 'legal' documents may frighten or confuse some tenants unnecessarily, and this may have a negative effect on tenants and their confidence in seeking advice to ensure their rights are being protected.

Question 4.23: Do you consider that the three notices currently required to be issued to tenants when the landlord seeks possession should be replaced by one, clearly-worded notice?

Table 89 Question 4.23 - Total Responses

Table 90 Question 4.23 - Group Responses by Type of Respondent

5.85 Finally, respondents were asked whether they consider that the three notices currently required to be issued to tenants when the landlord seeks possession should be replaced by one, clearly-worded notice. Again, there was broad agreement with 48 out of the 57 that answered this question supporting the proposal and 39 out of 48 group respondents in agreement.

5.86 However, some group respondents did not agree with the proposal (including SCSH, Shelter Scotland, Govan Law Centre, Fife Housing Partnership, GUSRC, PAiH, Turcan Connell, Pollockshaws and Eastwood Community Council and the SRPBA). In some cases, respondents disagreed because they do not agree there is currently a need for the 3 notices.

5.87 Very much in line with the view taken on merging the documents at the start of the SAT, SCSH did not support the proposal for other reasons. They considered that tenants should be entitled to a NTQ, a Notice of Proceedings and a Section 33 notice and that each has a different and very important function. Whilst they recognised that landlords should be assisted to manage their properties efficiently, SCSH considers it important that the balance of rights and responsibilities does not shift too far away from tenants and towards landlords. In this case, they suggest, there is no logical case for reducing the number of notices. Shelter Scotland and GUSRC shared these concerns.