This leaflet is a brief guide for any person who is considering letting out part of his or her own house and who may therefore be what is known as a resident landlord.
It answers some questions about your rights as a resident landlord and the rights of the person letting from you.
Important: This leaflet is only a general guide and is not a complete and authoritative statement of the law. If you want to know more about your particular rights and responsibilities you should get advice from a solicitor, a housing advice centre or Citizens Advice Bureau. You may be able to get help with the cost of legal advice.
The address of your nearest solicitor can be obtained from the Law Society of Scotland (telephone 031-226 7411) or from Yellow Pages.
The law of course applies equally to both sexes and in this booklet 'she' may be read for 'he' wherever it appears.
If you are letting rooms but not in your own main residence, your tenants will probably have a regulated tenancy (if theirtenancy started before 2 January 1989) or an assured tenancy (if their tenancy started more recently). Information about these kinds of lettings is in other leaflets produced by The Scottish Office Environment Department - "Regulated Tenancies in Scotland" and "Assured Tenancies in Scotland".
The leaflet is arranged as follows:
A. RESIDENT LANDLORDS
1. How do I tell if I am a resident landlord?
You are a resident landlord if you are letting part of your own house - the house you are living in - to someone else. The house has to be your only or main residence. You do not count as a resident landlord if you live in one flat in a "purpose built" block (such as a tenement) and your tenant lives in another flat in the same block. In addition, if you started letting to the tenant concerned on or after 2 January 1989, you do not qualify as a resident landlord if you and your tenant live in different flats in a building which has been converted into separate flats.
2. Do I have to get permission from anybody before letting my accommodation?
That depends on the circumstances.
If you are an owner-occupier there may be some restrictions in your title deeds. In addition,. if you have taken out a loan on the property you may need to get the lender's permission.
If you are a secure council tenant you can sub-let part of your home provided that you first obtain your council's written consent, which it must not withhold unreasonably.
Similarly, if you are a tenant of a registered housing association you can probably let any spare accommodation with their consent, but you should check with your landlord.
If you are a private tenant, whether you can let your spare accommodation will depend on the terms of your tenancy agreement. Check with your landlord if you are not sure.
If you are planning to convert your property in any way to make it more suitable to let, such as by adding extra toilet facilities, you may need planning permission and a building warrant from your local council. Check with your council.
3. What rent can I charge?
If the letting started on or after 2 January 1989, then in virtually all cases you will negotiate a rent, and any arrangements for increasing the rent, with your tenant.
If the letting started before 2 January 1989 (or is the result of a contract entered into before then) and is a "Part VIV contract - a letting governed by Part VII of The Rent (Scotland) Act 1984 - you or your tenant may be able to ask a rent assessment committee to fix a reasonable rent. If the rent is referred to the committee they will consider the views of you and your tenant; and they will normally visit your house to- see the tenant's accommodation. The committee may hear evidence rather than deal with it in writing. A committee hearing is informal, but if you want you can be represented by a solicitor or any other person.
The rent the committee fix could be the same as, higher, or lower, than the amount the tenant is already paying. If it is higher, you will only be able to charge the higher rent if the tenancy agreement allows you to do so. In any other case the rent fixed by the committee is the most you may charge for the accommodation until the committee registers another rent, unless your
tenant leaves and another one moves in. Usually, you can apply for a new rent to be registered only after 3 years. You can apply earlier only if you and your tenant make ajoint application or if there has been a change in the circumstances of the tenancy (for example, improvements have been carried out).
If a new tenant moves in, the rent fixed by the rent assessment committee does not have to apply any longer: you can negotiate a new rent which the new tenant cannot refer to the rent assessment committee.
If you yourself move out of the house, you will cease to be a resident landlord and your tenant will probably become a regulated tenant (if the letting started before 2 January 1989) or an assured tenant.
4. Do I need to provide a rent book?
Only if you have a tenant who started letting before 2 January 1989 and whose rent is payable weekly must you supply a rent book. However, it is always advisable for both you and the tenant to have a written record of the amount of rent paid. The rent book should contain this information:
The landlord's name and address;
The amount of rent; and
The tenant's rights under the recent laws, including a reminder about the availability of rent allowances (housing benefit).
5. Can I require a deposit?
If the letting is a Part VII contract under the Rent (Scotland) Act 1984 (that is, most lettings by resident landlords which started before 2 January 1989) you can charge a deposit of not more than two months' rent, provided this is not an unreasonable sum to charge bearing in mind how much the tenant is going to be responsible for in the tenancy. For most other lettings by resident landlords, including agreements made since 2 January 1989, you can agree with your tenant the amount of any deposit. You should note, however, that, in general, a tenant will not be able to recover the cost of any deposit from housing benefit or any other social security benefit.
6. How much notice do 1 need to give my tenant if I want him to leave?
You must give your tenant a valid notice to quit if you wish him or her to leave. The notice must be in writing and contain certain information about the tenant's basic rights. You must give the tenant at least 4 weeks' notice of the time you want the tenancy to end. The tenancy will not be terminated until a valid notice to quit is served. This is a very important step and you should seek advice on how to go about it properly.
7. Must my tenant leave when the notice to quit expires?
Usually but not necessarily. In most cases your tenant will go, but 'if he or she does not, you will generally have to obtain a court order. The court may in certain circumstances delay the date you have proposed for the tenancy to end.
In the special case when you started letting as a resident landlord to the tenant before 1 December 1980, your tenant can also ask the rent assessment committee to suspend the notice to quit. If that is granted, the expiry date (that is the date on which you can go to the court for an order to evict the tenant) is put off and the tenant has security of tenure for as long as the committee suspend the notice. However, an application must be made to the rent assessment committee before the expiry of the period in the notice to quit. The rent assessment committee in these circumstances can grant successive periods of security for up to 6 months at a time provided that the tenant applies before the suspension runs out.
If your tenant applies to the rent assessment committee for the notice to quit to be suspended, you will be invited to give your views. If during a suspension your tenant does not pay his rent, damages the property, or disturbs other people living in the house or adjoining houses, you can ask the committee to shorten the period, or you can go straight to the court which can direct that the period of suspension be reduced and an order for possession made.
Once the notice to quit does eventually expire, a court order-is still necessary in most cases before you can evict the tenant. The court must grant the order but it has discretion to postpone, normally for a few weeks, the date on which the tenant must leave to give him or her time to make other arrangements.
8. Do I need to get a court order?
If your tenant does not leave voluntarily after being served with a notice to quit, you will almost always have to get a court order. It is a criminal offence to evict a tenant without a court order if one is necessary. It is also an offence to do anything calculated to interfere with your tenant's peace or comfort with a view to driving him or her out.
However as a resident landlord you may not need a court order if the following conditions are met:
1. The tenant does not have an exclusive right to occupy any part of the house or rooms you are letting; and
2. You or a member of your close family shares living accommodation with your tenant. Living accommodation does not include a corridor, passage, staircase or other means of access, nor any storage space.
The possibility of being able to proceed without a court order and the steps required to obtain one if necessary are important issues and you should seek appropriate advice.
9. What do I do if my tenant doesn't go?
You should get advice immediately from your solicitor or a Citizens Advice Bureau.
10. What happens if I move out?
If you move out of the house but ' continue to let to your tenant, you will no longer be a resident landlord and your tenant will have more rights. In particular, he or she might have security of tenure and, if the letting started before 2 January 1989, he or she will probably have the right to have a rent registered by the rent officer.
11. What happens if I sell the house?
If you sell the house to someone else, but your tenant continues to live in it, the purchaser must follow certain procedures to continue as a resident landlord. If he intends to be a resident landlord he has 28 days from the date on which all the formalities of the sale are completed to write to the tenant saying he intends to move in. If he gives this notification, he then has up to 6 months before he must actually move in.
12. What happens if I die?
If you die, your executors have up to 2 years to wind up your estate. During that time, as long as the interest of the landlord is held by your executors, the letting will continue to be treated as if there were a resident landlord.
13. What happens if my tenant behaves badly towards me or my family?
Some local councils have tenancy relations officers or other people in the housing department who can advise landlords and tenants when problems arise. Check with your local council. Otherwise ask advice from a solicitor or a Citizens Advice Bureau. In cases of physical violence, you should contact the police immediately. Even if your tenant has been behaving badly it is still necessary to give the proper notice to quit, and obtain a court order if required.
14. Do I have to give my tenant a written agreement?
This is not necessary, but it is always advisable. The agreement should, amongst other things, make clear:
How much the tenant has to pay, how that sum can be, reviewed and if necessary increased;
How much notice you or your tenant will give each other if you want to end the arrangement;
What meals or services you will be providing if any; and
What you will pay for, and what you expect the tenant to pay for.
15. Does it matter if the rooms are furnished?
You can let accommodation with or without furniture. The tenant has the same rights in both cases.
16. Can I control the number of guests my tenant has, the hours they stay etc.?
These are matters to be settled at the outset in the tenancy agreement or by arrangement between you and your tenant.
17. Does my tenant's individual room (or rooms) have to have its own lock or key?
This is also something for you and your tenant to decide between you.
18. Must my tenant have a room of his or her own or self-contained accommodation?
Again, this is a matter for you to agree between you.
19. Who is responsible for repairs?
You as landlord have an obligation to carry out certain repairs, in particular to the structure and to installations for the supply of water, gas, electricity and sanitation, and for space heating and water heating. Apart from these, it is up to you to arrange with your tenant who i's responsible for day to day repairs and maintenance.
You can get in touch with the Rent Officer at the following addresses:
If you live in the Strathclyde, Central or Dumfries/Galloway Regions or the Western Isles, at:
* St Andrew House, 141 West Nile Street,
GLASGOW G1 2RN.
Telephone 041-332 6981-9.
If you live in the Lothian or Borders Regions, at:
* 16 Picardy Place,
EDINBURGH EH1 3JT.
Telephone: 031-557 0555.
If you live in the Tayside, Fife or Highland Regions, at:
132 Seagate,
DUNDEE DD1 2HB.
Telephone 0382 28931.
If you live in the Grampian Region or in Orkney or Shetland, at:
Atholl House, 84-88 Guild Street,
ABERDEEN AB1 2LT.
Telephone 0224 574567.
* The Rent Assessment Committee can also be contacted at these offices.
OTHER USEFUL ADDRESSES
Housing Advice may be available from:
1. Your local District or Islands Council Housing Department;
or
2. Your local Citizens Advice Bureau
You should be able to find the local office of any of these by looking up the telephone directory for your area or checking at your local library. In case of difficulty in locating a Citizens Advice Bureau you should contact the Head Office address given below. The Head Office staff cannot deal with personal enquiries but will be able to refer you to your nearest office which provides independent advice and assistance.
Citizens Advice Scotland,
26 George Square,
EDINBURGH EH8 9LD.
Telephone 031-667 0156.
There are also Shelter Housing Aid Centres (SHAC) in Scotland which provide free, independent advice and assistance. They can be found at the following addresses:
Aberdeen SHAC,
St Katherine's Centre,
47 Belmont Street,
ABERDEEN. AB1 1JS
Telephone 0224 645586.Edinburgh SHAC
103 Morrison Street,
EDINBURGH. EH3 813X.
Telephone 031-229 8771.Glasgow SHAC,
53 St Vincent Crescent,
GLASGOW, G3 8NQ.
Telephone 041-221 8995.Nithsdale Housing Advice Service,
Holywood Trust Building
Old Assembly Close,
Irish Street,
DUMFRIES DG1 2PH.
Telephone 0387 51192.
Solicitors well versed in landlord and tenant matters can be found by contacting:
Law Society of Scotland,
26 Drumsheugh Gardens,
EDINBURGH EH3 71R.
Telephone 031-226 7411
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