Part 3 – Tenancy Information
Landlord’s duties to provide information
21.Section 10 obliges a landlord to provide his or her tenant with a copy of the written terms of that person’s tenancy agreement if those terms are not already fully set out in writing. This will be relevant where a private residential tenancy has arisen from an oral agreement to create a tenancy, or where only some of the tenancy terms have been committed to writing.
22.Section 10 does not apply if the agreement between the parties is already in writing, even if it is not in formal writing and even if it is not expressed in a single document (for example, an exchange of emails may constitute written tenancy terms).
23.Where section 10 does apply, the landlord is required to give the tenant a document setting out all of the terms of the tenancy. This document must be given to the tenant no later than the day on which the private residential tenancy commences (assuming that the tenancy becomes a private residential tenancy immediately), or, if the tenancy only later becomes a private residential tenancy, within 28 days of its becoming one. A tenancy may convert to a private residential tenancy after the tenancy’s commencement if, for example, the tenant is initially using the let property as a second home, but later occupies it as his or her only or principal home.
24.The duty of landlords under section 10 is an on-going one. So if the terms of a tenancy subsequently change and the result is that the terms of the tenancy are no longer fully set out in writing, the landlord has to provide the tenant with a further document setting out the amended terms of the tenancy within 28 days of the change taking effect.
25.Section 11 gives the Scottish Ministers power to bring forward regulations to specify information that landlords must provide to their tenants and the timescales within which they must do so. Before making regulations under section 11, Ministers must consult persons representing the interests of tenants and landlords.
26.Section 12 allows the Scottish Ministers to make provision specifying how landlords are to perform their duty under section 10 and any duties to provide information imposed on them by regulations under section 11.
27.Section 13 prohibits a landlord from charging a tenant for the provision of a document setting out the tenancy’s terms (whether that document is produced under section 10 or not – and including any document amending the original terms). It also prohibits charging a tenant for information which is given in accordance with section 11. These prohibitions would apply equally where someone is acting on the landlord’s behalf (e.g. a letting agent).
First-tier Tribunal’s powers
28.Sections 14 to 17 set out the powers of the First-tier Tribunal for Scotland to:
deal with a landlord’s failure to provide written terms of a tenancy as required by section 10 or to provide information as required by regulations under section 11,
deal with the situation where either party feels that the written terms they do have do not properly express the terms of the tenancy.
29.Section 14(1) provides that where a landlord is required to supply written tenancy terms to the tenant under section 10 and has failed to do so, the tenant has the ability to refer a case to the First-tier Tribunal. This may arise where the landlord has not provided any written terms, or where some but not all of the tenancy terms have been set out in writing. Before referring a case to the Tribunal, a tenant must give a landlord 28 days’ notice of his or her intention to do so, which allows an opportunity for the failing to be rectified.
30.Section 14(2) enables a landlord or tenant to refer a case to the Tribunal where he or she considers that the tenancy agreement appears to displace a statutory term of the tenancy in a way that is not permitted under the regulations. Once laid out in regulations, the statutory terms will apply automatically even if they are not included in a tenancy agreement. However, this provision allows the Tribunal to determine whether or not a contractual tenancy term does in fact displace a statutory term in an unallowable manner in cases where the position is not entirely clear-cut.
31.Section 15 provides the Tribunal with the power to deal with an application under section 14 by drawing up a document which sets out all the terms of the tenancy, or, if there are already written terms of the tenancy, by declaring the written tenancy terms to be accurate. Any document drawn up by the Tribunal or which is the subject of a declaration as to its accuracy will constitute all the terms of that tenancy.
32.Section 16 enables a tenant to apply to the Tribunal to make a payment order against a landlord who fails to provide the tenant with the necessary tenancy documentation (i.e. documentation required by virtue of section 10 or 11). Any application made in relation to a failure to draw up written terms of a tenancy is conditional upon an application to the Tribunal asking it to draw up written terms of the tenancy also being made. The right to make an application is also restricted to current tenants. Before referring a case to the Tribunal under this section, a tenant must give a landlord 28 days’ notice of his or her intention to do so (allowing an opportunity for the failing to be rectified).
33.Section 16(2) specifies the amount that an order can require a landlord to pay the tenant in cases where the landlord does not have a reasonable excuse for his or her failure. The amount is up to a maximum of three months’ rent where there is a single failure to provide either the written terms of the tenancy required under section 10 or any of the other information required under section 11. Where a landlord fails to provide both the terms of the tenancy required under section 10 and any other information required under section 11, the order can require the landlord to pay the tenant up to a maximum of six months’ rent. Section 16(4) prevents a tenant from increasing the amount he or she can be awarded by bringing separate applications for each individual item not provided under section 11. Accordingly, there is no second opportunity to make a claim in respect of a particular failure to comply with section 11 if it could have been included in an earlier claim regarding a breach of section 11.
34.Section 16(5) states that if there are joint landlords, the Tribunal may make an order against all, some or only one of them. However, the total amount that a tenant may receive is the same as it would be if the tenant had a sole landlord. Conversely, where a joint tenant makes an application, the award is apportioned in accordance with section 16(7) so that even if the other joint tenants make separate applications later, the total amount that a landlord may be required to pay is the same as it would be if there was a sole tenant.
35.Section 17 provides that the amount of notice that a tenant is required to give a landlord before making an application to the Tribunal under section 14 (application to draw up terms) or section 16 (application for a financial award) is 28 days. The 28 day period commences on the later of either the day the landlord receives the notice from the tenant or the day after any deadline date, and the period ends on the day falling 28 days after it began. For example, if the landlord receives notice from the tenant on 15 January that he or she is referring a case to the Tribunal under section 14, the notice period expires at the end of the day on 12 February. Because the tenant cannot apply to the Tribunal until after the notice period has expired, the tenant cannot actually refer his or her case to the Tribunal until 13 February.