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Tenancy Deposits Scotland - Frequently Asked Questions

Tenancy Deposits Scotland - Frequently Asked Questions

Since 2012, landlords in Scotland have been required to lodge security deposits in one of three approved tenancy deposit schemes. Landlords should by now be well aware of their obligations to lodge deposits within 30 working days and to provide tenants with specific information relating to the tenancy and the deposit. However, our LetLaw team regularly receive queries in relation to the amount of deposit which can legally be requested from tenants. Here are some of our most frequently asked questions about tenancy deposits Scotland.

I am advertising a property to let at £500 pcm. What is the maximum deposit I can request?

The Rent (Scotland) Act 1984 (section 90) states that a deposit cannot exceed 2 months' rent payable. Therefore, the maximum a landlord can seek as a deposit is £1,000. Charging any more than 2 months' rent for a deposit would constitute an illegal premium under the 1984 Act, which is a criminal offence liable to a £1,000 fine.

How much can I request as payment of rent in advance?

Landlords can request payment of rent in advance in addition to a deposit so long as the advance payment is no more than 6 months before that rent falls due. Any clause in a tenancy agreement which requires a tenant to make a lump sum payment of rent in advance, more than six months before that rent falls due, can be struck out as being a void clause in terms of section 98 of the 1984 Act.

I purchased a property with a sitting tenant. Am I responsible for the previous landlords' failure to lodge the deposit in a tenancy deposit scheme?

The Tenancy Deposit Scheme (Scotland) Regulations 2011 provide that a landlord "who has received a tenancy deposit" in connection with a relevant tenancy must, within 30 working days of the beginning of the tenancy (a) pay the deposit to the scheme administrator of an approved scheme; and (b) provide the tenant with certain prescribed information. Clearly, the new landlord has not received the deposit. However, a landlord is defined "any person who lets a house under a tenancy, and includes the landlord's successors in title". Although this interpretation has not yet been determined by a court, it seems a new landlord could potentially be responsible for the breach. Prospective purchasers of a property with a sitting tenant should do their due diligence in respect of tenants deposits to ensure compliance with the 2011 Regulations.

For more information on tenancy deposits Scotland or on any aspect of private sector leasing, feel free to contact our team.

1 What you need to know before letting 2

 

Written by : Kirstie Donnelly

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