Private Residential Tenancy Agreement (Scotland)

What is a private residential tenancy agreement?

A private residential tenancy agreement is an agreement between a tenant and a landlord. The agreement grants the tenant permission to live in a private residential property and sets out the terms and conditions of their occupation. Residential property means that the property will be used as a person's home and main place of residence. This private residential tenancy agreement is designed for use in Scotland.

Different agreements must be used in England and Wales and in Northern Ireland.

This agreement will be used for private residential properties and should not be used if the property is owned and to be let by the local council.

What is the difference between a private residential tenancy agreement and a lodger agreement?

A lodger will occupy a room or a space within a property and the owner will remain living in the rest of the property. A lodger agreement creates a common law tenancy, which is a contractual agreement between the owner and the lodger. A lodger can be evicted by the owner at the end of a fixed term by the owner providing a certain amount of notice.

A private residential tenancy is open-ended, meaning there is no fixed end date. In order to end a private residential tenancy agreement, a landlord must rely on particular grounds for eviction and must follow a prescribed process. Tenants under a private residential tenancy agreement will have particular rights.

Is it mandatory to have a written private residential tenancy agreement?

Yes. If a landlord wants to rent a property to a tenant under a tenancy agreement, they must give the tenant a written copy of all of the terms of the tenancy.

What is a guarantor?

A guarantor will agree to pay the rent in the event that the tenant cannot or does not pay this. It is possible for the guarantor to be in an individual or a corporate entity (a company). This tenancy agreement may include a guarantor as a party if desired.

What are the prerequisites of a private residential tenancy agreement?

Before creating a private residential tenancy agreement, a landlord must:

• ensure they have the legal authority and relevant permission to let the property (e.g from a mortgage lender where applicable)
• register on the Scottish Landlord Register with the local council relevant to the location of the property that will be let under the tenancy agreement
• ensure that they understand the duties and responsibilities of a landlord
• register with an approved tenancy deposit scheme within 30 days of the tenancy starting
• provide the tenant with the required information pack before their tenancy starts
• provide the tenant with a privacy notice
• ensure that the terms of the proposed agreement will fall within the scope of a private residential tenancy agreement (and the property should not be used for commercial purposes)
• the parties may wish to receive advice* before the agreement is finalised

The agreement will not be reviewed by a lawyer to ensure that the legal content applies to the personal situation of the parties. In order to receive advice about the particulars of this agreement before it is finalised, it will be necessary to instruct a lawyer. For this type of document it is necessary to consult with a lawyer who is regulated by an approved regulator in the legal services sector. It is possible to search for a lawyer on the Law Society website.

Who can enter into a private residential tenancy agreement?

The parties should be over the age of 16. The parties should have the legal capacity to enter into a contract.

What can be the duration of a private residential tenancy agreement?

Private residential tenancy agreements are open-ended, meaning they do not have a fixed end date. In order to end a private residential tenancy agreement, a landlord must rely on particular grounds for eviction and must follow a prescribed process.

What must be done after the private residential tenancy agreement has been signed?

The agreement should be signed by both parties. It is possible to sign the agreement electronically. The parties can choose to sign the agreement in the presence of a witness, to assist in proving the validity of the agreement. The parties may wish to seek advice about the contents of the agreement*.

Once the agreement has been signed, the tenant may then occupy the property in accordance with the terms of the agreement. The landlord should comply with their duties as a landlord and must provide the tenant with a tenant information pack before their tenancy start date (by no later than the date the tenancy is due to start).

The agreement will not be reviewed by a lawyer to ensure that the legal content applies to the personal situation of the parties. In order to receive advice about the particulars of this agreement before it is finalised, it will be necessary to instruct a lawyer. For this type of agreement, it is necessary to consult with a lawyer who is regulated by an approved regulator in the legal services sector. It is possible to search for a lawyer on the Law Society website.

Should a private residential tenancy agreement be witnessed?

Whilst not mandatory, a private residential tenancy agreement can be witnessed, to help prove the validity of the agreement. Each party may therefore sign the agreement in the presence of a witness, who will then also sign the agreement. The witness should be an adult with capacity, who is not a party to the agreement.

What documents should be attached to a private residential tenancy agreement?

If the landlord is providing an inventory, then this should be attached at the space provided at schedule 1 of the agreement. A property inventory will provide a summary of all the items (such as furniture and white goods) in the property and will note the condition of those items.

What happens if the parties want to end the agreement?

The landlord must follow set rules and a particular process in order to end the agreement. The notice provided will depend upon the duration of the agreement and the grounds relied upon. Information is available on the government website about this.

If the tenant wishes to end the tenancy, they should provide written notice to the landlord and should provide at least 28 days of notice.

What must a private residential tenancy agreement contain?

A private residential tenancy agreement will:

• identify the relevant parties - this will include the tenant, the landlord, the letting agent and any guarantor
• define how the parties must communicate - this will explain how information about the agreement will be communicated between the parties
• identify the property – this should make it clear what areas and facilities are included as part of the property
• confirm the start date - this will confirm when the agreement will begin and when the tenant may move in
• confirm the agreed rent – this will confirm the amount of rent, how often rent will be paid and whether the rent may be increased throughout the agreement
• confirm the details about the payment of any deposit - this will explain how the deposit will be paid and how much the deposit will be
• set out the obligations of each party and the terms of occupation – this will include all duties and responsibilities of the landlord (e.g repairs and health and safety) and all obligations of and restrictions upon the tenant
• confirm how the agreement may be ended – this will define the specific grounds the landlord must rely upon and the notice which must be provided

What laws apply to a private residential tenancy agreement

The following key legal provisions will be relevant to a private residential tenancy agreement:

• The Private Housing (Tenancies) (Scotland) Act 2016
• The Private Residential Tenancies (Statutory Terms) (Scotland) Regulations 2017
• The Private Residential Tenancies (Prescribed Notices and Forms) (Scotland) Regulations 2017
• The Data Protection Act 2018
• The Antisocial Behaviour etc. (Scotland) Act 2004
• The Housing (Scotland) Act 2006

Help from a lawyer

You can choose to consult a lawyer if you need help.

The lawyer can answer your questions or help you through the process. You will be offered this option when you complete the document.

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