Part 4

Other matters relating to tenants

Unclaimed tenancy deposits

Use of unclaimed tenancy deposits
37
1
The Housing (Scotland) Act 2006 is modified as follows.
2
In section 121 (tenancy deposit schemes: regulatory framework)—
a
in subsection (2), after paragraph (d) insert—
da
impose requirements on a person who administers an approved scheme to report to the Scottish Ministers on matters relating to the operation of the approved scheme including, in particular, matters relating to unclaimed deposits,
,
b
after subsection (3) insert—
4
Tenancy deposit regulations must include provision to ensure that a tenancy deposit that is held under an approved scheme is not repaid unless a relevant application is made, within the 5-year period, for the tenancy deposit to be repaid.
5
In this Part—
- “5-year period”, in relation to a tenancy deposit held under an approved scheme, means the period of 5 years beginning with the later of—
  1. the day on which the provision required by subsection (4) comes into force in relation to the approved scheme, and
  2. the day on which the relevant tenancy or occupancy arrangement ends,
- “approved scheme” means a tenancy deposit scheme that is approved under section 122,
- “relevant application”, in relation to a tenancy deposit held under an approved scheme, means an application (however described) made—
  1. under the approved scheme, and
  2. in accordance with any tenancy deposit regulations that apply in relation to the application,
- “relevant tenancy or occupancy arrangement”, in relation to a tenancy deposit held under an approved scheme, means the tenancy or occupancy arrangement under or in connection with which the tenancy deposit was paid as security.
.
3
After section 122 insert—

Determining unclaimed deposits
122A
A tenancy deposit held under an approved scheme is to be determined by the scheme administrator to be an unclaimed deposit if the scheme administrator is satisfied that no relevant application was made, within the 5-year period, for the tenancy deposit to be repaid.

Transfer of unclaimed deposits
122B
1
The Scottish Ministers may direct the scheme administrator of an approved scheme to transfer to them, or to a fund administrator, any unclaimed deposits that are held on a particular day (“the accounting day”) under the approved scheme.
2
The direction—
a
must be in writing,
b
may specify the manner in which any such unclaimed deposits are to be transferred.
3
The scheme administrator must comply with any such direction within a period of 30 days beginning with the accounting day.

Use of transferred unclaimed deposits
122C
1
Unclaimed deposits that are transferred to the Scottish Ministers or to a fund administrator (in either case, “the recipient”) may be used by the recipient for the purposes of—
a
providing or securing the provision of—
i
advice, information or assistance to private tenants (or potential new tenants) about their rights,
ii
other services or facilities that promote or support their interests,
b
preventing private tenants from becoming homeless, or
c
paying or recovering administrative costs that are reasonably incurred by the recipient in the exercise of functions under this section or section 122D (but see subsection (3)).
2
Where any such unclaimed deposit is to be used for a purpose mentioned in subsection (1)(a) or (b) it may, in particular, be provided by way of a grant, loan or otherwise and on such conditions as the recipient considers appropriate.
3
Where any such unclaimed deposit is to be used for a purpose mentioned in subsection (1)(c), a fund administrator may do so only with the consent of the Scottish Ministers and in accordance with any conditions they specify.
4
In subsection (1)—
a
a reference to private tenants is a reference to any tenant under—
i
a private residential tenancy under the 2016 Act,
ii
a student residential tenancy,
iii
an assured tenancy under the Housing (Scotland) Act 1988,
iv
a protected tenancy under the Rent (Scotland) Act 1984, or
v
a Part VII contract under that Act,
b
a reference to potential new tenants is a reference to any person who may become a tenant under—
i
a private residential tenancy under the 2016 Act, or
ii
a student residential tenancy.
5
In this section—
- “the 2016 Act” means the Private Housing (Tenancies) (Scotland) Act 2016,
- “student” has the same meaning as in paragraph 5 of schedule 1 of the 2016 Act,
- “student residential tenancy” means a tenancy—
  1. the purpose of which is to confer on the tenant the right to occupy the let property while the tenant is a student, and
  2. to which paragraph 5(2) or (3) of schedule 1 (tenancies which cannot be private residential tenancies: student lets) of the 2016 Act applies.

Reports on the use of transferred unclaimed deposits
122D
1
The Scottish Ministers must prepare a report on the use of any unclaimed deposits that are transferred to them or to a fund administrator.
2
The Scottish Ministers must—
a
publish the report within a period of 3 years beginning with—
i
where the deposits to which the transfer request relates are transferred on a single day, that day, or
ii
where such deposits are transferred over a period of two or more days, the first of those days, and
b
lay a copy of it before the Scottish Parliament as soon as reasonably practicable after publication.
3
For the purpose of preparing a report under subsection (1), the Scottish Ministers may direct a fund administrator to give them a report on the use of any unclaimed deposits that are transferred to the fund administrator.
4
A report to be given by a fund administrator under subsection (3) must—
a
be given to the Scottish Ministers as soon as reasonably practicable after the direction is received, and
b
contain such information as the Scottish Ministers may specify in the direction.

Repayment of unclaimed deposits
122E
1
Subsection (2) applies where—
a
a tenancy deposit was paid by an occupant as security under or in connection with a tenancy or an occupancy arrangement, and
b
the tenancy deposit was an unclaimed deposit that was transferred to the Scottish Ministers or a fund administrator.
2
Where this subsection applies, the Scottish Ministers may, on the application of the former occupant, repay all or part of the former tenancy deposit (“the amount”) to the former occupant if they are satisfied that—
a
the former occupant has a reasonable excuse for not having made a relevant application, within the 5-year period, for the amount to be repaid, and
b
if the former occupant had made such an application immediately before the end of the 5-year period, the scheme administrator would have been required to repay the amount to the former occupant.
4
After section 123 insert—

Interpretation of this Part
123A
In this Part—
- “fund administrator” means a person, other than the Scottish Ministers, to whom unclaimed deposits are transferred,
- “scheme administrator”, in relation to an approved scheme, means the person who administers the scheme,
- “transferred” means transferred in compliance with a request under section 122B(1),
- “unclaimed deposit” means a tenancy deposit that is determined to be an unclaimed deposit in accordance with section 122A.
.
S. 37 not in force at Royal Assent, see s. 86(2)