Leases and Tenancy Agreements
We give advice on the preparation and wording of different types of leases and tenancy agreements, including Private Residential Tenancies, Scottish Secure Tenancy Agreements, Assured and Short Assured Tenancies. We have been called upon by private Landlords, Landlord organisations, registered Social Landlords and their subsidiaries to prepare and revise different styles of Tenancy Agreements.
Leases and Tenancy Agreements cover a wide range of property lets, both for houses and in commercial situations. They can vary from medium term leases of commercial premises (such as department stores, shopping malls, office blocks and factory premises), to shorter term leases of shops and offices, domestic leases for the renting of a private house, short term tenancy agreements, crofting tenancies, tenancies of allotment gardens and licences to occupy.
The law relating to Landlord and Tenant in both business and domestic properties is not straightforward with many potential pitfalls and the relevant regulations must be strictly observed if the interests of the Landlord and/or Tenant are to be best protected.
On 1 December 2017 a new type of tenancy - the Private Residential Tenancy (PRT) - came into force, replacing the assured and short assured tenancy agreements for new private rents. The current legal requirements for private Landlords and Tenants are laid down in legislation which must be met to comply with various regulations. The legislation provides that a PRT is open-ended, which means a Landlord will no longer be able to ask a Tenant to leave simply because the fixed term of the lease has ended. A PRT only has one date – the start date. In addition, the PRT has to contain certain information and written notices in a prescribed form need to be served to comply with the regulations. We will endeavor to provide you with a fee quotation for the carrying out of the necessary legal work whether you are Landlord or Tenant.
- The tenant under a lease breaches his obligations, and the landlord wishes to terminate the lease. Many legal complexities can arise causing difficulties for both Landlord and Tenant alike, particularly with a PRT given the detailed regulations which have to be complied with primarily by the Landlord.
- What happens if there is a lease to a partnership, and there is a change in the membership of the partnership? Is the lease brought to an end? Leases to partnerships must be approached with great care to make sure that the lease continues in these circumstances.
- A Landlord may believe he or she only has to be concerned with the Tenant and no-one else. Certain legislation exists in relation to spouses, co-habitees and sub-tenants which are not always appreciated. A number of problems can await the unwary Landlord.
- Spouses and co-habitees. If the tenancy is in the sole name of one person, the spouse of that particular Tenant may have rights to occupy the property as well – even if their name does not appear anywhere on the Lease. The spouse may have the right to continue living in the house, caravan, etc. In addition, a person’s co-habitee may also have certain rights to occupy a house which is rented by his or her partner.
- What about Notices to Quit? The common features of residential tenancies are that, if tenants fail to remove themselves from a property after they have been served with the appropriate Notices, they cannot be evicted from the property without an order from the Court. Service of the proper Notices on the Tenant by the Landlord in a form which is laid down by law is crucial. People with a mental illness (and other individuals who may need Social Work services) may have a legal right to a Community Care Assessment. If the Local Authority is the Landlord, they may have a statutory duty to assess a person’s needs. If a proper Care Assessment has not been carried out, the Tenant may have a valid defence to an action of eviction by the Local Authority.
- Does the Local Authority have a duty to house homeless people? In some circumstances, a Local Authority has a duty to provide accommodation for a child and a question may arise as to whether an action of eviction by a Local Authority is in breach of their duty to promote the child’s basic welfare. If a person has intentionally made himself homeless the Local Authority may not have any duty to re-house that person.
These are just a small number of complex situations which can often arise. There may be a number of legal defences open to a Tenant who is, or is alleged to be, in breach of a Lease or Tenancy Agreement, for example, in rent arrears. A confrontational approach may not always be the best option and resolution of the dispute by way of negotiation is often successful and less expensive. We are able to offer advice and assistance in each of these difficult areas of the law.