A tenancy agreement is a contract between you and your tenants. It sets out the legal terms and conditions of the tenancy. It can be written down or oral.

A tenancy can either be:

• fixed-term (running for a set period of time)
• periodic (running on a week-by-week or month-by-month basis)

Rights and responsibilities

Both you and your tenants have certain rights and responsibilities, whether or not there is a tenancy agreement.

Most residential lettings in Scotland made after 2 January 1989 are short assured tenancies. Those that aren't short assured are normally assured tenancies.

Short assured tenancies

This is the most common type of tenancy. A short assured tenancy makes it easier to get your property back than an assured tenancy.

Before any agreement is signed, you must use form AT5 to tell new tenants that the tenancy will be a short assured tenancy.

If you don’t, the tenancy will automatically be an assured tenancy.

Download 'Form AT5' (PDF, 77KB)

Initially, a short assured tenancy must be for 6 months or more. After the first 6 months, the tenancy can be renewed for a shorter period.

Assured tenancies

At the beginning of an assured tenancy, it will be classed as a 'contractual assured tenancy' for a fixed period of time.

The tenancy automatically becomes a 'statutory assured tenancy' if:

• you end the tenancy by issuing a notice to quit (eg because you want to change the agreement) and your tenant stays in the property
• the fixed period covered by the tenancy comes to an end and your tenant stays in the property

There are different rights and responsibilities on both landlord and tenant depending on the type of assured tenancy.

Most tenancies in Scotland are short assured or assured tenancies. The other tenancy types are:

• 'common law' tenancy - if your tenant shares your home as a lodger
• regulated tenancy - the most common form of tenancy before 1989
• agricultural tenancy
• crofting tenancy

‘Common law’ tenancies

If you're sharing your house or flat with your tenants, you can't use the short assured or assured tenancy. Instead, you'll automatically have what is known as a 'common law tenancy'.

You don’t have to have a written contract but it’s good practice to use a lodger agreement to create a contract between you and your tenant - so you’re both clear about what you’ve agreed.

Download a sample lodger agreement (RTF, 96KB) from Shelter Scotland

Regulated tenancies

Tenancies created before 2 January 1989 are generally regulated tenancies. You can't create a new regulated tenancy, but some still exist.

If your tenant is a regulated tenant, either you or your tenant can ask Rent Services Scotland to set ‘fair rent’. To do this, you need to complete form RR1 and send to it Rent Services Scotland.

Download 'Form RR1: Application for registration of a rent' (PDF, 14KB)

Rent Services Scotland
2nd Floor Endeavour House
1 Greenmarket
Dundee DD1 4QB

Once a rent is registered, you can't normally charge a higher rent without reapplying. You must normally wait at least 2 years before reapplying.

If either you or your tenant is unhappy with the rent decision, you can apply to the Private Rented Housing Panel (PRHP).

Regulated tenants also have increased protection from eviction.

Agricultural tenancies

There are 3 types of agricultural tenancy:

• limited duration tenancy - if the lease is for more than 5 years
• short limited duration tenancy - if the lease is for 5 years or less
• 1991 Act tenancy - if the tenancy began before 2003

All agricultural tenants have the right to:

• a written lease
• compensation at the end of the tenancy for any improvements they made to the land during your tenancy
• leave the tenancy to a spouse or relative in their will

If the lease is over 5 years, agricultural tenants can also:

• pass their tenancy on to a relative or spouse within their lifetime
• use the land for non-agricultural purposes

Tenants with a 1991 Act tenancy have the right to buy the land they are leasing.

If there's a house on the land, both you and your tenant have obligations to keep it in good repair.

Crofting tenancies

Crofting is a system of landholding unique to the Highlands and Islands of Scotland. Usually, the crofter holds the croft on the ‘statutory conditions’ and doesn't have a written lease. Crofting is regulated by the Crofting Commission. You must get written agreement from the Commission if you want to make any changes to a crofting tenancy (including a change of tenant).

If you use an assured or short assured tenancy, the agreement must be written down. It must include:

• the names of all people involved
• the rental price and how it's paid
• the deposit amount and how it will be protected
• when the deposit can be fully or partly withheld (eg to repair damage caused by tenants)
• the property address
• the start and end date of the tenancy
• any tenant or landlord obligations
• who's responsible for minor repairs
• which bills your tenants are responsible for
• a statement telling the tenant that antisocial behaviour is a breach of the agreement

For other types of tenancy, it's still good practice to put the agreement in writing.

Including other information

To avoid any confusion later, you can include other information in the agreement, such as:

• whether the tenancy can be ended early and how this can be done
• information on how and when the rent will be reviewed
• whether the property can be let to someone else (sublet) or have lodgers

You must get the agreement of your tenants if you want to make changes to the terms of their tenancy agreement.

Preventing discrimination

Unless you have a very strong reason, you must change anything in a tenancy agreement that might discriminate against your tenants on the grounds of:

• gender
• sexual orientation
• disability (or because of something connected with their disability)
• religion or belief
• being a transsexual person
• your tenant being pregnant or having a baby

Example
Your tenant might need a guide dog in the house but a term in the tenancy agreement says no pets are allowed. You must change the term to allow guide dogs in the property, unless you have a very strong reason not to (eg another tenant in the property has a serious allergy to dogs).

Tenancies don't automatically end when the term of the tenancy agreement comes to an end. To end a tenancy agreement, you must follow the correct procedures.

Notice to quit

To end any tenancy other than a common law tenancy, you must give your tenants a 'notice to quit'. Even for common law tenancies, this is still good practice.

You don't have to use a particular form, but for a notice to quit to be valid it must be in writing and must tell your tenants:

• how much notice you’re giving them
• that you'll still need a court order to get your property back if they don't leave when the notice runs out
• that they can get independent advice about the notice - and where they can get that advice from (eg Shelter Scotland)

Short assured tenancy

To get your property back, you must give your tenants a 'notice to quit' and a 'Section 33 notice'.

For a short assured tenancy, the minimum notice period is 40 days if the tenancy is for 6 months or longer.

For a tenancy that is continuing on a month by month basis after the original period has ended, the notice period is a minimum of 28 days.

You must give 2 months notice when giving a Section 33 notice. You can issue both the notice to quit and Section 33 notice at the same time.

Download 'Section 33 notice' (PDF, 11KB)

Other tenancy types

For other tenancy types you must give at least:

• 28 days if the tenancy is for up to 1 month
• 31 days if the tenancy is for up to 3 months
• 40 days if the tenancy is for more than 3 months

Ending a tenancy early

You can end a tenancy early if:

• your tenant breaks a condition of the tenancy agreement
• you and your tenant agree to end the tenancy

If your tenants don't leave

If the notice period expires and your tenants don’t leave the property, you can start the process of eviction through the courts.

You must tell your tenants of your intention to get a court order by giving them a 'notice of intention to raise proceedings' (AT6).

Download 'AP6: Notice of intention to raise proceedings' (PDF, 89KB)

You can’t forcibly remove your tenants without an eviction order.

The tenancy agreement should say how much notice your tenants need to give before they can leave the property.

If the notice isn’t mentioned in the tenancy agreement, the minimum notice your tenant can give is:

• 28 days if their tenancy runs on a month-to-month basis (or if it’s for less than a month)
• 40 days if their tenancy is for longer than 3 months

Ending a tenancy early

Unless there's a break clause in the tenancy agreement, you can insist that your tenants pay rent until the end of the tenancy.

If your tenants leave the property without giving notice, or before the notice has run out, they’re still responsible for the property and the rent by law. You can take legal action against them.