How the new tenancy arrangements will work.
As the implementation date has drawn nearer, The Scottish Government has published explanatory guidance, which has made things a bit clearer on how the new tenancy arrangements will work.
Any new tenancy created after the 1st December 2017 for residential tenancies subject to the exceptions contained in Section 1 and 2 of the 2016 Act which defines what a Residential Tenancy is and Schedule 1 which states what are not Private Residential Tenancies. The new tenancy is referred to as a Private Residential Tenancy , commonly referred to as a “PRT”.
Private Housing (Tenancies) Scotland Act 2016
Any existing Short Assured or Assured Tenancies will continue until they come to an end. This is not necessarily the end date specified in the lease .The lease that students are most likely to have been given at the moment would have been a Short Assured tenancy which must be at least 6 months or for a longer period in terms of the Housing (Scotland ) 1988.
If no notice is served before the end of the Short Assured Tenancy to bring the tenancy to an end, the lease will usually state that the lease continues thereafter on a month to month basis. If the lease says nothing about what happens after the expiry date, then it continues for a maximum period of a year. under Scots Law. These kinds of tenancies could therefore be active for a while after the change over to the new system.
As Student Leases are more short term, I would expect the transition phase to be far shorter. The most important difference for Landlords and Tenants is that the Private Residential Tenancy has no set end date. Given the yearly turnover of students, Landlords in this sector of the market will be able to get their properties back within a reasonable time frame.
Landlords letting out properties, in mainly the non- student sector may not so easily get their properties back. Landlords of student flats are likely to offer tenancies running from June to the following June, so that Landlords can line up other students to take over after June for the following year.
However, these time limits are not enforceable and the tenant could walk away and give notice of 28 days at any time during that period, if for example the student finds that he will be away from Dundee for half the Academic Year. The lease would come to an end like that only when there is one tenant.
Usually with student flats, one has a number of tenants sharing and all signing up to a joint tenancy of the property. Under the new rules all the joint tenants have to sign a Notice to Leave, to bring a lease to an end which could be problematic. If one of the tenants is leaving the University, returning home and is intending to leave the flat, the remaining tenants have to make sure the tenant signs a Notice to Leave before they go, apart from ensuring that any liabilities are met as all joint tenants are each liable for rent , outstanding utility bills and clean- up costs which could be higher than the deposit paid at the outset.
After the lease begins the Landlord and Tenant or Tenants, in terms of section 49(4) of the 2016 Act can agree a Notice period for a different number of days but any agreement must be in writing. Any agreement on notice which is entered into before the lease commences is invalid in terms of section 49(5) of the 2016 Act. So you cannot agree to stay or leave at a certain time before you enter into the lease in advance. The reference for the Act is www.legislation.gov.uk/asp/2016/19
The Notice to leave from the tenant has to be clear and in writing either sent by post in which case recommend recorded delivery, or hand delivery. This dealt with in the 2016 Act at Chapter 2 sections 48 and 49.
There is no set form for this Notice to Leave.
Here are links to helpful articles by a number of contributors to assist landlords and tenants navigate the changes that are to e made with the introduction of Private Residential Tenancy.
If you need any further information contact Gavin George, our Student Advice and Welfare Adviser