Highland Council Trading Standards “Thinking of Renting a Flat – Make sure you’re clever like Pat” campaign
As part of a joint national campaign, Citizens Advice Consumer Service and Highland Council Trading Standards are keen to advise students on what to look out for when renting a property.
Alasdair Christie, Inverness, Badenoch & Strathspey CAB Manager states: “We welcome the opportunity to inform new student tenants of recent changes to both private tenancy agreements and the role of letting agents in Scotland and inform young persons of their rights when faced with entering into a new private tenancy, perhaps for the first time.”
As part of the “Clever Like Pat” campaign, both Highland Council Trading Standards and Inverness, Badenoch & Strathspey CAB also wish to inform new student tenants and prospective rent guarantors of their obligations and responsibilities.
Both the Citizens Advice Consumer Service and Shelter Scotland provide advice and easy to use online guidance regarding private tenancy agreements and ‘rent guarantor agreements’ as explained below:
Private Tenant Agreements
A new type of tenancy came into force last year. Called the private residential tenancy, it replaced assured and short assured tenancy agreements for all new tenancies. This means that with any new tenancy agreed from 1st December 2017 (which is not an exempted tenancy); the tenant has enhanced rights and protection as follows:
- No more fixed terms - private residential tenancies are open-ended.
- Rent increases - rent can only be increased once every 12 months (with 3 months’ notice) and if the tenant thinks that the proposed increase is unfair then they can refer it to a rent officer: https://beta.gov.scot/publications/about-rent-service-scotland/)
- Longer notice period - if a tenant has lived in a property for longer than 6 months, the landlord must give the tenant at least 84 days’ notice to leave (unless the tenant has broken a term in the tenancy e.g. failure to pay the rent on time).
- Simpler notices - the notice to quit process has been scrapped and replaced by a simpler notice to leave process.
- Model tenancy agreement -The Scottish Government has published a model tenancy that landlords can use to set up a private tenancy.
A ‘private tenancy’ agreement contains certain statutory terms that outline both parties’ rights and obligations. A tenant has the right to a copy of a tenancy agreement within 28 days of the start of the tenancy. Further guidance on what this should include can be found at: https://beta.gov.scot/publications/private-residential-tenancies-tenants-guide/
A private tenant can check the type of tenancy they have by using an online tenancy checker provided by Shelter Scotland or by contacting an advisor on 0808 800 4444 or through an online live chat facility at: https://scotland.shelter.org.uk/about_us/contact_us
If a private tenant thinks that their landlord has breached their tenants’ rights, for example by refusing to carry out a repair, then they can complain to the First-tier Tribunal for Scotland (Housing and Property Chamber) which can be found at: https://www.housingandpropertychamber.scot/home
All private landlords must display a current landlord registration number on any adverts to rent a property. A registration number shows that a landlord is approved by the local authority to let property. Private landlords have to pass a 'fit and proper person' test to register with the council. A prospective tenant can check if a landlord has registered with their local authority by checking the Scottish Landlord Register: https://www.landlordregistrationscotland.gov.uk/search
A letting agent helps a landlord to find a tenant for their property. An agent may operate independently or it may be part of an estate agency firm. As from the 1st October 2018 it will be an offence for a letting agent to work without having applied to be on the Register. The Register of Letting Agents is run by the Scottish Government and a letting agent must pass a fit and proper person test. Once registered a letting agent must adhere to the Letting Agent Code of Practice. Full information about the Code can be found at: https://www.gov.scot/Resource/0053/00530797.pdf
Some of the requirements that a letting agent must adhere to under the Code are as follows:
- Carry out their business in a way that complies with all appropriate legislation.
- Be honest, open, transparent and fair in their dealing.
- Provide information in a clear and accessible way.
- Apply all procedures and policies consistently and reasonably.
- Carry out services provided using reasonable care and skill.
Even though the tenancy agreement is between the tenant and the landlord, the letting agent is providing a service and so the Consumer Rights Act 2015 also applies. This law sets out what a person is entitled to expect from every contract that involves the supply of a service, such as a letting agent's service. Key rights under a service contract can be found at Citizens Advice website at: https://www.citizensadvice.org.uk/
A prospective tenant can also register with more than one agent at a time and a letting agent cannot charge a registration fee. Any charges imposed other than the rent and a returnable deposit is likely to be considered as illegal charges under the Rent (Scotland Act) 1984. Illegal charges can also include: service and administration fees; holding charges and non-returnable deposits.
Anyone who may think that they have been charged an illegal fee by a letting agent can seek advice on how to reclaim this by going to Shelter Scotland website at: http://www.reclaimyourfees.com/#unlawful and report them to trading standards.
Tenancy deposit schemes and Tenant Information Pack
A tenancy deposit is a sum of money a tenant pays to a landlord (or letting agency acting on a landlord’s behalf) as security against, for example, rent arrears; damage to property; cleaning bills if the tenant leaves the properly in poor condition. A deposit must not be more than two months' rent and must be paid into a tenancy deposit scheme. A deposit cannot be used to replace items that are damaged, or worn, due to normal wear and tear, such as worn carpets or furniture. The landlord must advise a tenant within 30 days of the tenancy start date, the name of the tenancy deposit scheme which is holding a tenants deposit and the tenant should receive their full deposit back within 10 days of the end of the tenancy, unless damage to the property. Further information about tenancy deposit scheme providers in Scotland can be found at: https://www.mygov.scot/tenancy-deposits-tenants/
A free dispute resolution service is provided by the tenancy deposit scheme providers above. A landlord will have to prove why a deposit should be withheld. A landlord is required to use a dispute resolution if it’s requested by a tenant. But both tenants and landlords are free to negotiate if a dispute arises.
A ‘rent guarantor’ is a third party, such as a parent or close relative, who agrees to pay rent on behalf of a private tenant, if they fail to make payments. A landlord can ultimately take legal action to recover any unpaid rent from a ‘rent guarantor’.
A landlord (or letting agent acting on behalf of a landlord) may want to check that the ‘rent guarantor’ is able to pay the rent in the same way that they've checked that the tenant is able to pay. Checks carried out can appear to be intrusive (e.g. requests for payslips and bank account details are not uncommon) and so a tenant should ensure that their ‘rent guarantor’ is made aware of this beforehand.
David MacKenzie, Highland Council Trading Standards Manager explains further: “It is important that a ‘rent guarantor’ should be given an equal opportunity to check any guarantee agreement carefully so that the guarantor knows how and when their liability ends. If a guarantee agreement or tenancy agreement is in a standard form rather than one that has been negotiated individually, it may be possible to challenge a standard term if it is considered ‘unfair’ as this may create a 'significant imbalance' between the parties to the agreement”.
Mr MacKenzie further adds: “If any term is held to be unfair then it cannot be relied on and has no effect in law. We would encourage a tenant to refer a possible unfair contract term to Highland Council Trading Standards Service by contacting our partners Citizens Advice Consumer Helpline on telephone number: 03454 04 05 06 or via the online complaint form at: https://www.citizensadvice.org.uk/consumer/get-more-help/report-to-trading-standards/”
For further advice on housing issues consumers can also visit Citizens Advice Scotland website at: https://www.citizensadvice.org.uk/housing/renting-privately/
Highland Council Trading Standards and Inverness, Badenoch & Strathspey CAB are to jointly hold a stall for students attending Freshers Fayre at Inverness College, UHI Campus, Inverness on 12th September 2018. For further information about Freshers Fayres throughout the Highlands students can visit the Highland and Islands Students Association (HISA) website at: https://www.hisa.uhi.ac.uk/