Types of private tenancies

If you have a private tenancy which began before 2 January 1989 you could either have:

• a regulated tenancy, or

• an agreement with a landlord that is based on statute law or common law before 2 January 1989.

If your tenancy began before 2 January 1989 and you are not a regulated tenant you should seek specialist advice about what your rights are.

You are not a regulated tenant if your accommodation is:

• a bed and breakfast letting

• a company let.

You can get advice from a number of agencies, for example at a Citizens Advice Bureau - where to get advice.

Regulated tenants

If you are a regulated tenant, you will:

• be paying rent for the accommodation

• not normally have a resident landlord

• not be provided with food or services by the landlord.

Regulated tenants have the strongest rights of any type of private tenancy. If you think you are a regulated tenant and the landlord asks you to move or to sign a new agreement you must contact an experienced adviser immediately, for example at a Citizens Advice Bureau, because you may lose your rights by signing a new agreement - where to get advice.

Rights of regulated tenants

As a regulated tenant you have a number of rights by law including:

• security of tenure. The landlord can only repossess the accommodation in certain specified circumstances 

• the right to have the rent fixed by the rent officer 

• the right to have rent increased only in certain circumstances 

• the right to have the accommodation kept in a reasonable state of repair 

• the right to assign the tenancy to someone else while still alive but only if you have a particular type of regulated tenancy. You will need specialist advice about this

• the right of a person living with the tenant to succeed to the tenancy when they die but from December 2017 if you succeed to this type of tenancy you will be a private residential tenant not a regulated tenant

• the right not to be treated unfairly by your landlord because of a protected characteristic you have, such as your race, sex, religion, sexuality or disability.

If you have a private tenancy which began on or after 2 January 1989 you will be either:

• an assured tenant

• a short assured tenant

• a common law tenant or non tenant occupier.

Assured tenants

If you are an assured tenant you will not normally have a resident landlord and your landlord will not provide food or services. You will be paying rent for accommodation which you occupy as your only or principal home and you will have a written tenancy agreement. Find out more about tenancy agreements.

You will not be an assured tenant if your accommodation is:

• a student let - in university or college owned accommodation or privately owned but sublet through the accommodation service of the educational institution

• a holiday let

• a company let

• business premises

• temporary accommodation - arranged by the local authority because you're homeless.

Rights of assured tenants

As an assured tenant you have the right to stay in your accommodation unless the landlord can convince the First-tier Tribunal there are good reasons for eviction. Good reasons for eviction include rent arrears or damage to the property, or that one of the terms of the tenancy agreement has been broken. Find out more about legal action for rent arrears in the First-tier Tribunal.

If your tenancy began after 1 May 2013 your landlord must give you a tenant information pack before your tenancy starts. There is more information about the tenant information pack on the Scottish Government website.

You can enforce your rights, for instance to get repairs done, without the risk of your landlord evicting you in retaliation. They must prove to the First-tier Tribunal there is a good reason for them to get the property back. 

You also have other rights in law including the right:

• to a reasonable state of repair - the landlord must keep the property in a state that meets a legal standard

• to succession - a partner, relative or carer may be able to take over the tenancy if you die

• not to be discriminated against - because of your disability, gender reassignment, pregnancy and maternity, race, religion or belief, sex or sexual orientation.

If your landlord asks you to leave or wants to increase your rent, you should speak to an experienced adviser, for example at a Citizens Advice Bureau - where to get advice.

Short assured tenants

You will be a short assured tenant if the tenancy is for a fixed period of not less than six months and if before you moved in the landlord gave you a written 'Notice of a short assured tenancy'.

If you were not given a 'Notice of a short assured tenancy', or were given it after the tenancy started, you will usually be an assured tenant. A short assured tenancy is a less secure type of tenancy than an assured tenancy. It is granted for a fixed period of not less than six months and after this ends the landlord can apply to the First-tier Tribunal (Housing and Property Chamber) for possession as long as they have given at least two months’ notice.

You're not a short assured tenant if your accommodation is:

• a holiday let

• a company let

• a student let - rented from a university, college, or private provider but sublet through the accommodation service of the educational institution

• temporary accommodation - arranged by the local authority because you're homeless

• shared with your landlord

• provided for no rent.

Rights of short assured tenants

As a short assured tenant you have the right to stay in the accommodation until the fixed term ends, unless the landlord can convince the Tribunal there are reasons to evict you before that date. Reasons for eviction include rent arrears, damage to property, or that one of the terms of the agreement has been broken. Find out more about legal action at the First-tier Tribunal for rent arrears.

You can stay on after the end of the fixed term with the landlord's agreement, even if the short assured tenancy agreement is not renewed. This could be with a month by month agreement. The landlord still has to end the tenancy correctly giving two months written notice.

If your tenancy started after 1 May 2013 your landlord must give you a tenant information pack before your tenancy starts. There is more information about the tenant information pack on the Scottish Government website.

You also have other rights by law including the right:

• to a reasonable state of repair - the landlord must keep the property in a state that meets a legal standard

• to succession - a partner, relative or carer may be able to take over the tenancy if you die

• not to be discriminated against - because of your disability, gender reassignment, pregnancy and maternity, race, religion or belief, sex or sexual orientation.

You can enforce your rights to get repairs done, but if you do, the landlord may take steps to end your tenancy. If this happens, you should speak to an experienced adviser, for example at a Citizens Advice Bureau - where to get advice.

Your written tenancy agreement may give you more rights than the minimum provided by law. However, even if your agreement appears to give fewer rights than you are entitled to in law, your minimum legal rights still apply. Find out more about tenancy agreements.

Common law tenant or non-tenant occupier

If you have a private landlord, you're likely to be a common law tenant or non-tenant occupier if you:

• have a resident landlord

• are a student - renting from an educational institution or a private provider

• are provided accommodation by your employer

• have a company let

• have over two acres of agricultural land included in your tenancy

• pay a very low rent - (less than £6 per week)

• pay no rent

• are a tenant of the crown or a government department.

This list is not exhaustive and if you think you may be a common law tenant or occupier you should consult an experienced adviser, for example at a Citizens Advice Bureau - where to get advice.

There's more information about common law tenants and non-tenant occupiers on the Shelter Scotland website.

If you have a private tenancy which began on or after 1 December 2017 you will be either:

• a private residential tenant

• a common law tenant or non-tenant occupier.

Private residential tenants

If you’re a private residential tenant you will normally be renting your home from a private individual or a private company, like a letting agency. In some cases you will be renting from a private company that has been created by a housing association. This is the situation if you rent a property with a Mid Market rent, and this should be clear in your tenancy agreement.  

You should have a tenancy agreement explaining that you are a private residential tenant and your rights. Find out more about tenancy agreements.

You will not normally be a private residential tenant if your accommodation is:

• let to you under a different type of tenancy from before 1 December 2017

• social housing - let at any time under a Scottish secure tenancy

• shared with your landlord

• a holiday let

• a student let - whether university or college-owned accommodation or in a private hall of residence

• arranged by the local authority - because you are homeless, on probation, or seeking asylum

• business premises

• police or military housing

• let at a low rent - less than £6 per week

• arranged by a charity supporting veterans - from 1 July 2019

• temporary accommodation arranged by a charity supporting care leavers - from 1 July 2019.

Rights of private residential tenants

Private residential tenancies are open-ended. This means that there is no fixed term and the tenancy won't end until you want to leave and you give your landlord the correct notice, or your landlord gets an eviction order. 

Some landlords might tell you that they only want to rent the property for a certain amount of time, but you can't be made to leave unless the landlord gets an eviction order. 

You have the right to stay in your accommodation unless the landlord can convince the First-tier Tribunal (Housing and Property Chamber) there are good reasons for eviction. Reasons for eviction might be rent arrears or damage to the property, or that one of the terms of the tenancy agreement has been broken.

Your landlord must give you a pack of 'easy read notes' or 'supporting notes' explaining your rights and responsibilities alongside your tenancy agreement. There is more information about the notes you should be given on the Scottish Government website. 

The rights you have by law include:

• a reasonable state of repair - the landlord must keep the property in a condition that meets legal standards

• notice about rent increases - the landlord must send you a written notice three months before increasing the rent, which you can challenge

• succession - a partner, relative or carer may be able to take over the tenancy if you die

• not to be discriminated against - because of your disability, gender reassignment, pregnancy and maternity, race, religion or belief, sex or sexual orientation.

You can complain to the First-tier Tribunal for Scotland (Housing and Property Chamber) if you think your landlord has breached your rights, for example by refusing to carry out a repair. Your landlord can’t evict you just for complaining to the First-tier Tribunal as they need to have a good reason to ask for the property back.

The Tribunal cannot award you compensation but may be able to impose a financial penalty on your landlord that can be passed on to you .

When you can’t solve a problem with your landlord it may be worth speaking to an experienced adviser, for example at a Citizens Advice Bureau - where to get advice.

Your written tenancy agreement may give you more rights than the minimum provided by law. However, your agreement cannot give you fewer rights than you're entitled to by law. Even if it appears to do so, your legal rights will still apply. Find out more about tenancy agreements.

There is more information about the rights of private residential tenants on the Scottish Government website.

Rent increases for private residential tenancies

Private residential tenants have stronger and clearer rights to challenge rent increases than most people with other types of private tenancy. The landlord also has to follow a clearly defined procedure for a rent increase to be legal.

Common law tenant or non-tenant occupier

If you have a private landlord, you're likely to be a common law tenant or non-tenant occupier if you:

• have a resident landlord

• are a student - renting from an educational institution or a private provider

• are provided accommodation by your employer

• have a company let

• have over two acres of agricultural land included in your tenancy

• pay a very low rent - (less than £6 per week)

• pay no rent

• are a tenant of the crown or a government department.

This list is not exhaustive and if you think you may be a common law tenant or occupier you should consult an experienced adviser, for example at a Citizens Advice Bureau - where to get advice.

There's more information about common law tenants and non-tenant occupiers on the Shelter Scotland website.

If you occupy accommodation because of your job, for example as a caretaker, you will not necessarily be a common law tenant or non-tenant occupier. You might have rights as a private residential, assured or short assured tenant. You might not have to give up the accommodation if you leave the job.

What is a HMO

A house in multiple occupation (HMO) is accommodation which is shared by three or more unrelated people, and it usually has to be your main home. Examples include:

• a house or flat let out in separate bed-sits

• a 'bed and breakfast' establishment or 'guest house' which the occupants use as their home

• a house or flat where each tenant has a separate agreement with the landlord

• communal accommodation such as hostels or student halls of residence

• any student accommodation during term-time depending on the number of occupiers

• homes for nurses.

Licences for HMOs

A private sector landlord must have a licence from their local authority to rent out a house in multiple occupation (HMO) if there are three or more people living in the property who are not part of the same family. You can ask your local authority if your landlord has an HMO licence.

The following types of accommodation are exempt from the compulsory licensing scheme regardless of the number of people who occupy them:

• residential care homes

• private hospitals

• residential accommodation for school students.

The compulsory licensing scheme means that a local authority has the power to impose standards relating to the physical condition of the building and the management of the house in multiple occupation. The standards imposed will vary between local authorities.

Visit the Scottish Government's website for more information about HMOs. There are penalties of up to £20,000 for landlords who operate an HMO without a licence and up to £50,000 for landlords who are not registered with the local authority. 

The exact rules of the compulsory licensing scheme are complex and an experienced adviser should be contacted, for example at a Citizens Advice Bureau - where to get advice.

Landlords who rent out accommodation in HMOs are not allowed to discriminate against you because of your disability, gender reassignment, pregnancy and maternity, race, sex or sexual orientation, religion or belief. If a landlord who rents out accommodation in HMOs discriminates against you, you can report them to your local authority. Your local authority must take this information into account when they decide whether to grant the landlord a licence.

Fire safety in HMOs

HMO landlords must provide adequate fire precautions. There is more information on the Shelter Scotland website.