Prepare for the new private residential tenancies

The Private Housing (Tenancies) (Scotland) Act 2016 will come into force on 1 December 2017. From that date it will no longer be possible to create short assured tenancies or assured tenancies, and all new residential tenancies must be set up in accordance with the provisions of the Act.

In some respects, it will be procedurally simpler: there is no longer any requirement for the familiar pre-tenancy AT5 notice, although there is a raft of statutory forms that must be used in certain circumstances, such as intimation of an increase in the rent, and referrals to a rent officer, or the First-tier Tribunal. These forms are contained in the Private Residential Tenancies (Prescribed Notices and Forms) (Scotland) Regulations 2017 (SSI 2017/297). As these style forms are mandatory, practitioners who are involved in advising on private residential tenancies should transpose these styles onto their own systems for convenience. We await the style model tenancy agreement, which is expected to be published on 23 October. The MTA will contain a mixture of mandatory and discretionary clauses, although landlords are free to add their own additional provisions to the lease.

Another simplification is that the tenancy agreement does not need to comply with the Requirements of Writing (Scotland) Act 1995, since a private residential tenancy under the 2016 Act is not a real right for the purposes of s 1 of the 1995 Act. This should permit more informal means to be used to set up the tenancy agreement. Under the provisions of the 2016 Act, writing is not required to create a tenancy, but if a tenancy is created without writing, the landlord comes under a duty to provide written terms of the tenancy.