Unfortunately it's not like it appears on TV! The reality of the court system in Scotland is very different and here we give landlords five tips on how to prepare for court appearances.
Sometimes it feels as if I've spent most of my life in court, but for landlords raising their own eviction or payment actions against tenants, the court can often be a scary place. Here are some handy tips to hopefully help calm any nerves.
1.Your Clothes
Sadly, some courts will judge a
Tenancy Deposit Scheme - Scottish landlord loses appeal against a decision made at Edinburgh Sheriff Court to hold them liable to pay their tenant three times the deposit taken, after their tenant took them to court over having failed to lodge their deposit in a tenancy deposit scheme.
In the case of Tenzin v Russell & Clark, the landlords had failed to pay a deposit into a tenancy deposit scheme. There was no dispute that they had failed to meet their obligations under the Regulations.
There has been much speculation in the media regarding the proposed Immigration Bill, which will include duties to carry out immigration checks by landlords on prospective tenants. Although there were reports that these provisions would be scrapped, Home Secretary Theresa May confirmed her plans to press ahead with these. This is anticipated to become law by 2014 (subject to approval by MPs).
Will carrying out immigration checks by?landlords be necessary?
The Aims of Bill
In a bid to tackle the social and economic problems caused
Two tenancy deposit scheme decisions issued by Edinburgh Sheriff Court have given some insight on how the courts are going to treat the sanctions available under the tenancy deposit scheme regulations in Scotland.
In Fraser and Pease v Meehan, the landlord had failed to lodge the deposit with the scheme and provide the prescribed information. He claimed he wasn't aware of the scheme and the duties that came with it, as he lived in Australia.
The Sheriff,
Landlords, both private and social, may require access to one of their tenanted properties for a variety of different reasons. So, can landlords force access to a property?
Landlords have a general duty to repair and maintain properties throughout the duration of a tenancy and are legally obliged to comply with gas and electricity safety regulations so access may be necessary on occasion.
A landlord may also wish to carry out a general inspection to ascertain the current condition of the property or may wish
The outbreak of Legionnaires Disease in the Renfrew area, following on from an Edinburgh outbreak in 2012, is a timely reminder to private landlords that they have obligations to carry out legionnaires risk assessments of water systems within their rental properties.
The Health & Safety Executive (HSE) have an Approved Code of Practice and Guidance as regards Legionnaires Disease. The Code can be found here.
The Code confirms that private landlords have a duty to carry out legionnaires risk assessments on water systems in
Clive Betts MP recently launched a scathing attack on "cowboy" letting agents, accusing them of ripping off both landlords and agents. His proposals for a crackdown on the industry as a whole will only be applicable to England and Wales but the Scottish Government has made it clear that letting agent regulation is high on their agenda. Many agents in Scotland act within the law and provide an excellent service to landlords. However as with the "rogue" landlords, there are rogue letting agents who give
Is rent in advance legal? We blogged on the outcome of the English case of Johnson and Ors against Old, which concerned a tenant who had paid six months rent in advance. The court held that this payment of rent did not fall under the definition of a deposit. The decision was based on the wording of the Tenancy Agreement as well as the intentions of the landlords and tenant.
We've received many queries from clients regarding the issue of taking rent in advance. In
After a lengthy period of consultation, the Housing Minister used her speech at an SFHA conference to announce that they had now concluded the consultation and announced the following changes will be included in a forthcoming Bill.
Changes that will:
Putting penalty clauses in tenancy agreements is fairly routine procedure within the private rented sector. However, whilst the practice may be widespread in Scotland, the issue of whether or not a penalty clause is legitimate can be a tricky matter.
Penalty clauses provide that where a tenant is in breach of their tenancy obligations, they will be liable to pay certain charges in addition to their rent. Charges typically imposed by landlords and letting agents range from interest on overdue rent or charging for the
Many landlords will have joint tenants, particularly in student flats. However recent legislation on tenancy deposit schemes and tenant information packs has highlighted some issues facing landlords with joint tenants in Scotland.
Tenancy Deposit Scheme
- The tenancy deposit scheme regulations say nothing about joint tenants
- It has been left up to each scheme to make the rules as to how they will deal with deposits for joint tenancies
- Each scheme requires?landlords to identify a lead tenant when submitting a deposit. This will
LetLaw have had a number of Tenancy Deposit Scheme queries from landlords and agents regarding the Scottish Tenancy Deposit Scheme deadline, and in particular the rules relating to tenancies which started prior to 7 March 2011.
The Tenancy Deposit Schemes (Scotland) Regulations 2011 provide for different timescales for lodging deposits, depending on when the tenancy commenced and when it renews. Some landlords appear to be of the belief that as long as the deposit was received prior to 7 March 2011, then they have no
We are frequently asked by landlords can other owners be forced to maintain their property. One common issue is where persistent leaks from one property cause water ingress and damage to another. This can be where one or both of the properties are being let.
Unfortunately, landlords in this situation are limited in what they can do to prevent further leaks arising. You can put pressure on the owner to carry out repairs swiftly and by a qualified contractor. However, often repairs aren't carried out
Landlords are increasingly turning to the internet to conduct their letting business. A major part of that is the issue of signing tenancy agreements online. Most landlords would be keen to have this option particularly if there is no face to face contact between landlord and tenant. However, the law in Scotland has not quite caught up with the rest of the world and as such there is some doubt whether tenancy agreements signed online are legal.
In Scotland, tenancy agreements require to be 'self-proving'.
Better Dispute Resolution in Housing: Consultation on the Introduction of a New Housing Panel for Scotland. A bit of a mouthful, but this is the title of the latest Government proposal for Scotland's Homeowner Housing Panel which was published in January 2013. The paper can be found by clicking here.
In very simple terms the government is inviting comment on its plan to change the way that housing disputes are resolved.
The consultation examines three principal options:
What do you do about unpaid rent when dealing with limited companies who won't pay? It is common for landlords and letting agents to let residential properties to limited companies, for use by the company employees. Where such a lease is with a company tenant (rather than an individual) this form of lease cannot be a Short Assured Tenancy. The Housing (Scotland) Act 1988 states that for a Short Assured Tenancy to be created, the tenant must be an individual. Where you are leasing to
Do you know how to ensure your property is being maintained properly? The Letlaw team recently received a query from a landlord who suspected their tenant was hoarding items within the property. Although the tenant had always paid their rent, they had denied the landlord access to carry out inspections, over a long period of time . The landlord asked: should they insist on gaining access to the property given the rent is always paid on time, to allay their concerns, but risk 'rocking the
The Scottish Government's 'get ready for winter' campaign has now started. What are a landlord's legal responsibilities to tenants in winter?
While the current weather is causing significant flooding problems, no doubt we will soon see the return of freezing weather which leads to many housing associations and landlords facing calls from tenants about frozen pipes. Many will also be concerned about what they have to do to keep footpaths clear of snow and ice. So what are the legal obligations of a landlord in
A decision by the Court of Session serves as a timely reminder for landlords regarding their duty in respect of inspecting and maintaining common areas. Common parts are generally understood as shared areas common to all tenants such as staircases and paths, but which remain under the landlord's control and their responsibility.
In the case of Kathleen Kirkham v Link Group Ltd a tenant attempted to sue her landlord, Link Group Ltd for £92,400 after she sustained an injury by tripping on a garden footpath.
The Court of Session has probably just issued its most significant legal judgment in the field of housing law Scotland in the last twenty years.
In the case of South Lanarkshire Council v McKenna, the court had been asked to consider whether the entire regime of short Scottish secure tenancies set out under the Housing (Scotland) Act 2001 was compliant with the Human Rights legislation. They were asked to consider whether the rules on evictions on short Scottish secure tenancies were lawful and whether
A Short Assured Tenancy Agreement in Scotland is the most commonly used type of tenancy in the private rented sector. The following outlines the basics of a short assured tenancy agreement for both landlords and tenants in Scotland.
What is a Short Assured Tenancy (SAT)?
A special type of 'Assured Tenancy' which lasts for a minimum period of 6 months.
Why use a Short Assured Tenancy Agreement in Scotland?
In Scotland, landlords often favour SATs because they can recover possession of the property at the
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
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
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
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.
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
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
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
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
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
