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Unlawful letting agent charges in Scotland

Unlawful letting agent charges in Scotland

Following their consultation on the issue of unlawful letting agent charges in May 2012, the Scottish Government have announced that a change to the definition of a 'premium' will come into effect on 30 November 2012.

Currently, the definition of a 'premium' is contained within section 90 of the Rent (Scotland) Act 1984 which states that it includes "any fine or other sum and any other pecuniary consideration in addition to rent". Premiums are payments which are required by a landlord as a condition of

Eviction after bankruptcy or signing a trust deed - Scotland

Eviction after bankruptcy or signing a trust deed - Scotland

So how easy is it to obtain an eviction after bankruptcy or signing a trust deed in Scotland? Over the last few years, we have received a significant number of queries from registered social landlords and private landlords regarding eviction in Scotland when a tenant is sequestrated (declares bankruptcy) or signs a trust deed.

When a person enters into bankruptcy or a trust deed, it becomes impossible to raise court proceedings against them to enforce payment of any debt owed which pre-dates the insolvency. In

How can tenants ensure repairs happen?

How can tenants ensure repairs happen?

So how can tenants ensure repairs happen? The Housing (Scotland) Act 2006 stipulates that a private landlord must ensure that each tenanted property meets a basic standard of repair; if the property doesn?t then tenants can make a referral to the Private Rented Housing Panel (PRHP).

In order to meet the repairing standard:

  • The property must be wind and watertight and fit for human habitation,
  • The structure and exterior of the property must be in proper working order,
  • The installations for the supply of water,

What are Energy Performance Certificates?

What are Energy Performance Certificates?

Owners of Scottish properties should be aware that there are new requirements for Energy Performance Certificates which will be introduced in October 2012 and January 2013. Please find below a summary of the relevant changes:

From 1st October 2012

- In addition to showing an Energy Performance Certificate to a prospective purchaser or tenant, a copy of the Energy Performance Certificate must also be given to the purchaser or incoming tenant of a property.

- All Energy Performance Certificates must contain a note of

Debt Recovery - Using the Small Claims Court in Scotland

Debt Recovery - Using the Small Claims Court in Scotland

Using the Small Claims Court in Scotland - this can be utilised by landlords looking to recover a debt owed by a tenant. Usually these debts relate to rent arrears or costs arising from repairs. If tenant fails to pay a debt owed to the landlord, and has also failed to respond to correspondence, then the landlord must decide:

- whether the debt is worth pursuing further

- which method to use in order to recover the debt in the most cost/time effective manner

A

Tenancy Deposit Scheme in Scotland

All three of the tenancy deposit schemes in Scotland approved by the Scottish Government are now operational! The many different aspects of the tenancy deposit scheme in Scotland?have been covered on our blog before however with the official operational date of 2 July 2012 having passed, it would be a good time to remind landlords of the timescales involved to ensure they are complying with their duties. Rest assured, there is no need to panic just yet!

Landlords in Scotland will need to lodge a

Terminating a tenancy agreement early - how to end a lease

Terminating a tenancy agreement early - how to end a lease

If a landlord finds himself in a situation where a tenant has requested terminating a tenancy agreement early, the tenancy agreement should have clear terms under which the tenant can give notice to terminate the agreement. In most circumstances the tenant will have to give two months notice prior to the end date of the tenancy. If the tenant tries to get out of the agreement early without giving notice in terms of the tenancy agreement, the landlord may have a claim for any losses

Homeowners Housing Panel in Scotland

Homeowners Housing Panel in Scotland

The Property Factors (Scotland) Act 2011 will come into force on 1 October this year and alongside this the Homeowners Housing Panel.

The Act will introduce new rules and regulations for property factors in Scotland. Property factors will require to be registered and to comply with a Code of Conduct. It will also introduce a new dispute resolution procedure for complaints arising from factoring problems or allegations of failure to comply with the Code of Conduct.

With effect from 1 October, the Homeowners Housing Panel

Housing benefit changes affect landlords

Housing benefit changes affect landlords

In October 2013, the UK government plans to make changes to housing benefit. How will these housing benefit changes affect landlords in Scotland?

The Government intends to introduce a single 'universal' credit which will be paid to claimants of working age. The idea is to simplify the system for claimants, and make it easier for staff to administer. The new benefit will begin to be introduced in 2013 and will be completely phased in by 2017.

What will this mean in practice?

  • Housing benefit will

Debt recovery Scotland: Have you considered bank arrestment?

Debt recovery Scotland: Have you considered bank arrestment?

Debt Recovery Scotland - Where an order for payment is granted in a court or tribunal, this will not automatically result in payment. The order will need to be enforced against the debtor and his or her assets. One method of enforcing an order for payment is by executing an arrestment.

What is an arrestment?

A form of diligence where a creditor with a court order can arrest the debtor's moveable property where that property is in the hands of a third party, e.g. arrestment

Letting Agents - can a tenant reclaim fees?

Letting Agents - can a tenant reclaim fees?

We blogged about the Scottish Government's current consultation on letting agents charging premiums and possible amendments to the definition of a premium. Since then, Shelter launched a campaign encouraging tenants to reclaim your fees. Shelter wants the Scottish Government to clarify the legislation to make it clear to tenants, landlords and agents just what charges are permitted, if any, over and above rent and a security deposit. So if you are letting agents - can a tenant reclaim fees?

So what is a premium?

The

Private landlords - don't lose your HMO licence!

Private landlords - don't lose your HMO licence!

Landlords in the private rented sector in Scotland must register with their local authority for an HMO licence and must be deemed fit and proper persons. Additionally, where properties are being let to multiple occupants, the property itself also requires to be licensed. Where a landlord has a number of different HMO properties then the landlord's behaviour at one property can impact on the licensing of another. So make sure you don't lose your HMO licence!

A recent court case showed that landlords are expected

Tenancy Deposit Scheme Scotland: Vital Dates

Tenancy Deposit Scheme Scotland: Vital Dates

The Scottish Government has approved its first Tenancy Deposit Scheme! There are now vital dates in place that you really can't ignore. Ministers have announced that the scheme proposed by Letting Protection Scotland has been given the green light to become operational under the Tenancy Deposit Scheme Scotland Regulations 2011, with effect from Monday 2 July 2012.

Meanwhile, two other schemes, namely SafeDeposits Scotland and MyDeposits Scotland, are hoping to be approved and ready to commence on 2nd July. All being well, landlords will

Are Holding Deposits & Reference Fees Legal?

Are Holding Deposits & Reference Fees Legal?

If you are taking holding deposits and reference fees, is this legal? Letting agents charge a number of different types of fees to tenants, under a variety of names such as:

- 'holding deposits'
- 'reference fees'
- 'administration fees', to name but a few

The current legal position under the Rent (Scotland) Act 1984 is that it is an offence to charge or receive any premium (over and above rent and a security deposit of no more than two months rent) as a condition

Landlord Electrical Safety Checks

Landlord Electrical Safety Checks

Landlord Electrical Safety Checks - do you know your legal duties regarding electrical requirements? In the private sector it can be bewildering when it comes to knowing what your legal obligations are when carrying out electrical safety checks on electrical installations and appliances within rented properties.

There are two main legal obligations that a landlord should be aware of.

  • Firstly, the Housing (Scotland) Act 2006 sets out the 'repairing standard' which a landlord must ensure their property meets at the start of, and at all

Landlord legal advice: beware the internet!

Landlord legal advice: beware the internet!

If you are a Scottish landlord then you should beware of landlord legal advice on the internet. The internet can be a confusing place for landlords - with many unaware of the differences between the Scottish and English legal system. So should you believe internet landlord legal advice?

Scottish landlords can be easily misled by websites targeting English landlords referring to English procedures, which can leave the landlord vulnerable, particularly in the area of eviction. Some of the key differences are set out below.

Scotland

What is a Tenant Information Pack?

What is a Tenant Information Pack?

Are you aware that the Private Rented Housing (Scotland) Act 2011 is proposing that all landlords will have to provide a tenant information pack in future?

The aim of this Act is to support responsible landlords and address more effectively the problems caused by landlords who act unlawfully, by strengthening the regulation of the private rented sector. One of the proposals within this Act was the introduction of a 'Tenant Information Pack' for all private sector tenants.

The Government have now indicated that they wish

Changes to the HMO licence in Scotland

Changes to the HMO licence in Scotland

The Private Rented Housing Act 2011 in Scotland will introduce changes (including changes to the HMO licence) which will affect all landlords in the private rented sector, with its various parts coming into force in stages. The following provisions will amend the existing Houses in Multiple Occupation (HMO) licence regime and are due to come into force on 31 January 2012.

Firstly, a local authority will have the power to refuse to consider an application for an HMO licence, where it considers that occupation of

Landlord's Duties When Evicting a Tenant

Landlord's Duties When Evicting a Tenant

Many landlords are unaware of their duties under the Homelessness (Scotland) Act 2003 when raising court proceedings against a tenant for eviction. What are a landlord's duties when evicting a tenant?

Section 11 of the Act states that;

a landlord when raising proceedings for repossession must give notice to the local authority in whose area the property is situated. Said notice should be given when the court action is raised against the tenant.

It is not sufficient for the landlord to simply write to the

Tenancy Agreements - Putting a guarantor agreement in place

Tenancy Agreements - Putting a guarantor agreement in place

More and more landlords are now requiring tenants to provide guarantors, in addition to carrying out the usual referencing checks. This gives a landlord some added protection against the risk of the tenant failing to pay rent under the tenancy agreement. However, it is important that landlords ensure that the guarantor signs an express agreement, so that the landlord can legally enforce the obligations against the guarantor, should the tenant fail to fulfil theirs. So how do you put a guarantor agreement in place?

Our

Will the local authority re-house my tenant?

Will the local authority re-house my tenant?

We often hear from frustrated landlords who despite serving notices on their tenant, are advised that the local authority will not re-house them, forcing the landlord to raise an eviction action to repossess their property. For landlords who have been through the legal process, an eviction action can be both lengthy and costly. So will the local authority re-house my tenant following eviction?

Are Councils obliged to rehouse a tenant?

The Council must assess homeless applicants to decide whether or not they are entitled to

Launch of Scottish Tenancy Deposit Scheme

At the inaugural LetLaw Legal Update seminar in Glasgow, the hot topic was the launch of the Scottish tenancy deposit scheme and how this will work in practice.

Whilst there was plenty of discussion surrounding ways of avoiding the scheme (!), the primary concern of both landlords and letting agents appeared to be what would happen if a scheme was to fail.

The Tenancy Deposit Scheme Regulations 2011 were issued by the Scottish Government earlier this year.? Under those Regulations, any organisation who applies to

HMO Licence - How not to do it

HMO Licence - How not to do it

New rules relating to licensing of houses in multiple occupation (HMO) came into force August 2011. Landlords should be aware of these rules, which require a local authority HMO licence when a property is shared by three or more unrelated individuals.

There are some exceptions but a recent court case has shown that landlords should not try to avoid compliance with the rules by attempting to find inventive ways to meet some of the exemptions. More details can be found here.

The case involved

Rent Arrears Scotland: Early Intervention by Landlords

Rent Arrears Scotland: Early Intervention by Landlords

A regular question at our landlord training sessions relates to the idea of early intervention when a tenant accrues rent arrears in Scotland. Landlords should always contact the tenant in these situations to obtain an explanation for the non-payment of the rent. Early contact can often prevent the situation from escalating outwith the tenant's control.

Many landlords worry they will be accused of harassment if they make attempts to contact the tenant. In one recent example, after the tenant had given notice to quit, the

Short Assured Tenancy - are pre-tenancy charges legal?

Short Assured Tenancy - are pre-tenancy charges legal?

The question of whether pre-tenancy charges imposed on tenants by landlords/agents under a short assured tenancy are legal is a long-running debate within the private rented sector.

Many landlords/agents charge a variety of fees to a tenant prior to sign-up, including administration charge, 'holding deposit' and 'referencing fee'. We've even heard of agents charging fees to prospective tenants for cleaning the property after they have left, when they've not even moved in yet!

Section 82 of the 1984 Act states that ?any person who, as

How to find a debtor then raise a court action

How to find a debtor then raise a court action

We are frequently asked to raise court actions against debtors whose whereabouts are unknown; would you know how to find a debtor then raise a court action?

In any court action, a summons needs to be served on a debtor. The whereabouts of a debtor may be unknown because:

  • The debtor may have moved to another address without the creditor's knowledge since the original debt accrued
  • The debtor has not provided an address
  • Or, as is sometime the case, provided an inaccurate address

Many creditors

How to evict a tenant lawfully!

How to evict a tenant lawfully!

Nearly 50 years ago, Harold Wilson's Labour government introduced the first law to make unlawful tenant evictions a criminal offence. This law was designed to deal with the 'incentives' which encouraged landlords to remove tenants. So how do you evict a tenant lawfully?

At that time:

  • Properties were easier to sell and would sell at a greater price if they were vacant rather than with a sitting tenant.
  • Removing tenants who had the benefit of rental protection allowed landlords to maximise their income. One London

How long does an eviction action take in Scotland?

How long does an eviction action take in Scotland?

Tribunal Repossession Application Timescales

The answer to "how long does an eviction action actually take in Scotland?" is much along the same lines as "how long is a piece of string?"

Obtaining an Order for Possession in Scotland is not a particularly quick process. If your application is straightforward and is not defended by your tenant, the following can be used as a general guide:-

Which route of repossession are you taking?

If the tenancy is a short assured tenancy:

  • Compulsory Repossession: this relies on

Landlords - How to use the Small Claims Court in Scotland

How can landlords use the small claims court in Scotland to recover debt from a tenant? We work closely with Landlord Accreditation Scotland and one of their regular training sessions involves how to pursue a tenant for money through the courts using the small claims procedure.

It's supposed to be an easy way for people to recover money without a solicitor, but caution should be taken as there are some hidden dangers that landlords should be aware of:

The Court Rules
Small claims were designed

Do I Need a Written Tenancy Agreement in Scotland?

Do I Need a Written Tenancy Agreement in Scotland?

Our lettings service LetLaw received a query from a landlord who asked whether it was necessary for him to have a written tenancy agreement with his tenant.

The short answer is yes! Section 38 of the Housing (Scotland) Act 1988 makes it a legal requirement for a private landlord to provide a tenant with a written tenancy agreement. If the landlord fails to do so, the tenant can apply to court for this documentation to be provided.

A tenancy agreement shouldn't be viewed as a

Landlords Gas Safety Responsibilities

What is a landlords gas safety responsibilities? The Gas Safety (Installation and Use) Regulations 1998 require a landlord to ensure that any gas fitting (and any flue which serves any relevant gas fitting) is maintained in a safe condition.

The Health & Safety Executive (HSE) issued a safety letter in October 2008 regarding a potential risk regarding flues for gas boilers which were located in internal walls and which run through areas such as a ceiling void. Clearly such flues cannot be easily visually inspected.

Helping Landlords Get the Notice to Quit Date Right

Helping Landlords Get the Notice to Quit Date Right

As a private landlord, you really need to be on the ball to avoid the pitfalls of Scottish tenancy law. One of the biggest danger areas involves the perils of picking the wrong date. This can occur in a number of circumstances. So how do you get the notice to quit date right?

The Short Assured Tenancy Agreement Scotland

  • The law says that a short assured tenancy agreement must be for a minimum of six months. e.g. 8 December 2010 to 8 June 2011.
  • Always

Private Rented Housing Scotland Act 2011

Private Rented Housing Scotland Act 2011

Are you ready for the Private Rented Housing Scotland Act 2011? The Scottish Parliament doesn't like to make life easy for us by just bringing a whole Act into force at the same time. Instead, they like to test a lawyer's ability to keep up to speed, by bringing certain parts into force in dribs and drabs. As a landlord, are you ready for the Private Rented Housing (Scotland) Act 2011?

On 31 August the following provisions will come into force:

  • A local authority can

Landlords: How to Evict a Tenant

Landlords: How to Evict a Tenant

As a private landlord you'll be glad to know that when it comes to repossessing your property in Scotland, the lawmakers have made it nice and complicated for you. Even if a tenant has committed a serious breach of the tenancy agreement, there is no guarantee that you will be able to evict them. So how to evict a tenant?

There are two handy routes for eviction that are available to you, but neither is fool proof.

HOW THE SECTION 33 ROUTE WORKS:
-At least

How do I Ensure a Tenant Pays their Rent?

How do I Ensure a Tenant Pays their Rent?

As a landlord, how do you ensure a tenant pays their rent?

Well, in a nutshell, you can't! But you can try to protect yourself by taking some basic steps before you hand over the keys to the property.

Credit checks
What is your prospective tenant's financial position? Have they got multiple debts to other creditors? Are there any payment decrees granted against them in court? If so, alarm bells should ring and you should think twice about handing over those keys!

Referencing
Obtain references

Ready for more changes in the Private Rented Sector?

Ready for more changes in the Private Rented Sector?

The law is raining down on the private rented sector and over the next few years there will be major legal changes affecting you and your tenants. Are you ready for more changes in the private rented sector?

Ahead of the pack is the Private Rented Housing (Scotland) Act 2011 which should be in force by the end of 2011. If you're really keen or just looking for a cure for insomnia, the entire act can be found here. Meanwhile, keep reading for a handy

Does the Dangerous Dogs Act affect landlords?

Does the Dangerous Dogs Act affect landlords?

Would you know a dangerous dog if you saw one? Most tenants wouldn't and who can blame them. You may think the huge black snarling beast with the sharp teeth next door is a dangerous dog but the law probably disagrees. How can the Dangerous Dogs Act help?

The problems caused by dangerous dogs remains a topical issue and a controversial one. I've often had calls from landlords, who in turn have had calls from their tenants or other residents in the area - The

Raising Applications Where the Tenant's Location is Unknown

In an earlier blog we discussed the benefits of the new abandonment ground contained within the Private Housing (Tenancies) (Scotland) Act 2016.

Ground 10 states;

?It is an eviction ground that the tenant is not occupying the let property as the tenant?s home?.

This ground is only applicable to private residential tenancies.

A practical difficulty now anticipated in connection with this ground relates to service difficulties in the application for eviction.

The First-tier Tribunal for Scotland (Housing and Property Chamber) arranges service of the eviction

Disability Discrimination: a Defence to Eviction

Registered Social Landlords will be all too familiar with the reasonableness defences available to tenants facing eviction in the Sheriff Court. However, they may be less aware of an additional defence under the Equality Act 2010 which is increasing in frequency

15 (1) of the Equality Act 2010 (the Act) provides:

?A person (A) discriminates against a disabled person (B) if? (a) A treats B unfavourably because of something arising in consequence of B's disability, and (b) A cannot show that the treatment is a

Landlord Legal Rights ? When Can You Access Your Property?

One of the most frequent problems faced by landlords is how they access a property when their tenant refuses to let them in.? This is more common when the landlord, tenant relationship has broken down! What legal rights does a landlord have?

Routine Access

Most Short Assured Tenancies should have a specific clause covering landlord?s access to the property.? Most of these clauses say that the tenant agrees to give the landlord access:

  • To carry out maintenance, repair or inspection
  • Provided written notice has been

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