Private Sector Tenants - Frequently Asked Questions
Below is detailed some of the most common questions asked by private tenants. This is not an exhaustive list so should you have a question which is not answered here please do not hesitate to contact the Homelessness and Advice section on 01856873535 or via e-mail.
Contents
Can I get help with a rent deposit?
What type of tenancy will I get?
Grounds for Eviction - Private Residential Tenancies and Assured Tenancies
Notice Period - Assured Tenancies
What should my landlord give me?
Can my landlord come into the property at any time?
Who is responsible for repairs?
What if the property is in a poor state of repair?
How do I find a private let?
Private lets are advertised in the local newspapers each Thursday and via the local estate agents. However many private lets are not advertised at all, these are let through word of mouth. If you are looking for accommodation it is advisable to ask around and let people know that you are looking. Placing your own advert in the local newspaper or in shop windows is often effective as well. You can use a PO Box address but giving a phone number will normally get a greater response. You may also wish to use social media.
You can also check for available private lets online or by contacting Housing Services. Our property advertising service – Orkney Lets, available through the related links section of this page. – allows private landlords to advertise available properties via the Council's website. Details of the properties are also available in paper format at the Council Offices, Kirkwall.
Can I afford a private let?
Private lets are generally more expensive than Council or Housing Association properties. If you are on a low income or claiming benefits you may be entitled to help with the rent from Local Housing Allowance.
Local Housing Allowance does not always cover the full rent. Before taking on a private let it is advisable to check what level of benefit you would be entitled to. The amount payable will depend on the size of your family and your income. Further information is available from the Housing Benefit section, available through the related links section of this page.
Remember that you will have other bills besides the rent, such as:
- Council Tax - see the related links section of this page.
- Electricity or other fuel sources.
- Food.
- TV Licence.
- Contents Insurance.
It is important to budget your money and ensure that you can afford all the costs involved before you think about moving in. Help with budgeting and dealing with debt is available from Orkney Citizens Advice Bureau, Anchor Buildings, Kirkwall. A link to their website can be found in the related sites section of this page.
Once you have found a private let and signed the tenancy agreement you can submit a claim form for Local Housing Allowance. The forms are available from the Council Offices, the Stromness Cash Office and Job Centre Plus - a link to their website can be found in the related sites section of this page. If you would like any help filling in the form please contact the Housing Benefit Section.
Can I get help with a rent deposit?
Orkney Islands Council manages a rent deposit scheme to help people who are homeless or threatened with homelessness and who are thinking of renting from a private sector landlord.
If you find somewhere to rent you must first inform the landlord that you are contacting the Council about using the scheme. You will then complete an application form and provide the Council with information regarding the property you want to rent. Assuming your application is approved the deposit is paid directly to the landlord who will then place the deposit with one of the recognised National Rent Deposit scheme providers. An arrangement is then made between you and the council to repay the deposit over a period of time. Further information is available in the Rent Deposit section under related links section and a leaflet is available for download in the related downloads section.
What is a tenancy agreement?
A tenancy agreement is a written contract between you and your landlord. It is sometimes called a lease. It should be written in clear language and accurately outline the terms and conditions of your tenancy.
At the least a tenancy agreement must contain the following information:
- Who the lease is between – you and your landlord.
- The amount of rent due.
- The duration of your tenancy - if this is not stated on your tenancy agreement then the tenancy is for one year.
- The property or rooms you will be renting.
However your tenancy agreement should also include other information, such as –
- When the rent is payable - weekly, monthly, in advance or in arrears.
- How the rent should be paid - by standing order, etc.
- What is included in the rent – does it include electricity, gardening, window washing, etc.
- If you have to pay a deposit the agreement should outline what this deposit covers and explain the circumstances under which you may not get it back – ie if the property is damaged.
- If you have permission to sublet, take in lodgers, pass your tenancy onto someone else and so forth.
- Who is responsible for decorating the property.
- How the tenancy can be ended – ie can you leave before the end of the fixed period, how much notice do you have to give etc.
There may also be clauses about whether you can keep pets, smoke in the property etc.
Please note that certain conditions are laid down in law and cannot be overridden by a tenancy agreement. For example, if your tenancy agreement states that your landlord can give you one weeks' notice and you have to leave this will not be valid as you must get a minimum of four weeks' notice by law. Always check with an independent housing advisor if you are unsure.
You must read the tenancy agreement carefully before you sign it as it contains the rules of your tenancy. If you are not happy with any of the conditions, or feel that the agreement does not accurately reflect the terms you have agreed with the landlord, you must discuss this before signing the agreement.
If you are already a tenant and do not have a tenancy agreement you do have the right to ask your landlord to draw one up. If your landlord refuses to do so you have the right to ask the Sheriff to draw up the agreement. However you should take independent advice before taking the matter to the Sheriff.
What type of tenancy will I get?
If you are signing a tenancy agreement after 1 December 2017, you will get a private residential tenancy. It can be difficult to tell what type of tenancy you have and if you have any doubts you should contact our Homelessness and Advice section for advice. Although some tenancy agreements do state the type of tenancy being offered this is not always accurate. The Homelessness and Advice section offer a free, confidential advice and information service and you can contact us on 01856873535 or visit us at the Council Offices, School Place, Kirkwall.
If you have a resident landlord then you will not have a private residential tenancy or, if before December 2017, an assured or short assured tenancy. Please see the section on Resident Landlords for more details.
There are three main types of tenancy in the private sector – private residential tenancy, and for those tenancies created before December 2017, assured and short assured.
A private residential tenancy was introduced by Scottish Government on 1 December 2017 for landlords/tenants. Its purpose is to improve security, stability and predictability for tenants and provide safeguards for landlords, lenders and investors. The new tenancy is open-ended and will last until a tenant wishes to leave the let property or a landlord uses one (or more) of 18 grounds for eviction, see Grounds for Eviction page from the 'Related Links' section of this page.
An assured tenancy may not have an end date and gives you greater security. An assured tenancy cannot be brought to an end unless your landlord has valid grounds to ask you to leave and has served a valid notice to quit and an eviction order has been granted. For more information on the reasons your assured tenancy can be ended, see Grounds for Eviction page from the 'Related Links' section of this page.
A short assured tenancy is a tenancy that is for 6 months or more. The duration of the tenancy must be stated on the lease. Most short assured tenancies are for 6 months with a clause in the lease that states the tenancy will continue on a month to month basis after the initial 6 months is over.
A tenancy is only a short assured tenancy if your landlord serves you a Form AT5 before you sign the tenancy agreement and move in to the property and if that tenancy was created before December 2017. You must be given a copy of the AT5. You should keep this form, and your tenancy agreement, in a safe place as they are important documents.
It is important to note that you do not have to leave when the initial period runs out. Your landlord must still serve you with a notice to quit and be granted a court order before you have to leave.
What is a Resident Landlord?
If you share a bathroom, kitchen or entrance with your landlord then you probably have a resident landlord. This means that you do not have a private residential tenancy or, if created before December 2017, an assured or short assured tenancy. You are more likely to have what is called an “occupancy agreement”. You may have a written document that states how much rent you pay and has some basic rules for living in the property but often there is no written arrangement.
Normally the rent is lower for these kind of lets as you are required to share facilities with your landlord. This can make them ideal for younger tenants who may not be entitled to full Local Housing Allowance. In addition to this, landlords who are renting out a room in their house do not usually require deposits or long term lease agreements so it can often be easier to access this type of accommodation.
Tenants who have resident landlords do not have the same security of tenure as private residential tenants, assured and short assured tenants. Although your landlord legally must obtain a court order before you have to leave, you are only entitled to “reasonable notice” before this is done. If you experience any problems with your landlord, or if you are asked to leave, then you should contact our Homelessness and Advice section immediately for advice and assistance.
Grounds for Eviction – Private Residential Tenancies and Assured Tenancies
For all grounds for eviction, please visit the 'Grounds for Eviction' page from the 'Related Links' section of this page.
Notice Period – Private Residential Tenancies and Assured Tenancies
For notice periods, please visit the 'Evictions' page from the 'Related Links' section of this page.
Short Assured Tenancies
If you have a short assured tenancy you have the same rights as an assured tenant during the set period of your tenancy. For example if your tenancy is for 12 months and your landlord wishes to end the tenancy after 3 months she or he will have to go through the same process as for an assured tenant, using one of the Grounds for Eviction.
However, you only have this security of tenure during the agreed duration of the tenancy. Your landlord has a right to serve you with two months' notice on the grounds that your agreed tenancy duration has come to an end. She or he can do this by serving you with notice two months prior to the agreed end date of your tenancy.
The Sheriff must grant a possession order provided your landlord has served the following notices correctly:
- Notice to Quit, giving a minimum of 40 days notice.
- Section 33 notice, giving a minimum of 2 months notice.
- Notice of Proceedings for Possession – often Form AT6 is used, giving a minimum of 2 months notice.
If you are not sure what type of tenancy you have you should seek advice from a housing advice centre, such as our Homelessness and Advice section or the Orkney Citizens Advice Bureau. A link to their website can be found at the related sites section of this page.
What should my landlord give me?
You have a legal right to a written tenancy agreement and your landlord must provide you with one.
If you pay your rent weekly your landlord must give you a rent book. These can be purchased from most stationery shops and must contain certain information, such as the landlord’s name and address, the amount of rent that is due and a summary of the tenants basic rights under the Housing (Scotland) Act 1988.
If you do not pay your rent weekly you do not have to be given a rent book. However your landlord should provide you with some form of proof of payment, particularly important if you pay in cash as otherwise you may have no way of showing what rent you have paid.
If your tenancy began on or after 3 September 2007, your landlord must also provide you with details of the Repairing Standard and how it relates to your tenancy. See the “Repairs” section for further details.
Can my landlord come into the property at any time?
Your landlord has the right to access the property in order to carry out an inspection or necessary repairs. However, your landlord must give you at least 24 hours notice in writing, unless it is an emergency, such as a burst water pipe.
You do have a responsibility to ensure that you give your landlord reasonable access to the property. This access should be at reasonable times of the day. If your landlord is accessing the property without prior notice you should seek advice on how to deal with this.
Who is responsible for repairs?
Private rented properties must meet the Repairing Standard and it is usually the landlords responsibility to ensure this is met both at the start of the tenancy and at all times during the tenancy.
Under the Repairing Standard, your landlord must ensure the following:
- The property is wind and water tight and reasonable fit for human habitation.
- The structure and exterior of the property including drains, gutters and external pipes are in reasonable repair and proper working order.
- The installations in the property for the supply of water, gas and electricity and for sanitation, space heating and heating water are in reasonable repair and working order.
- Any fixtures, fittings and appliances provided under the tenancy are in reasonable repair and working order.
- Any furnishings provided under the tenancy are capable of being used safely for the purpose for which they are designed.
- There is satisfactory provision for detecting fires ie smoke alarms.
- Tenants are required to keep the property in good condition and to repair any damage they cause. If the landlord has to repair damages caused by the tenant she or he has the right to recharge the tenant for doing so.
The tenancy agreement should explain who is responsible for internal decoration of the property. This is a matter to be decided between the landlord and tenant.
If your landlord refuses to carry out repairs for which he is responsible you have the right to complain to the Private Rented Housing Panel (PRHP). You must ensure that you have informed your landlord of the required repairs and given him or her a reasonable opportunity to carry them out before you apply to the PRHP. See “What if the property is in a poor state of repair?” for further details.
If your tenancy began on or after 3 September 2007, your landlord should have informed you of the Repairing Standard and how it relates to your tenancy, including information on the role of the PRHP. If you did not receive this information, please contact our Homelessness and Advice section.
A link to the PRHP website can be found at the related sites section of this page.
What if the property is in a poor state of repair?
If you have concerns about the state of repair of your home you should contact your landlord in the first instance. If your landlord fails to carry out the required work and you believe that the property does not meet the Repairing Standard you have the right to apply to the First Tier Tribunal for Scotland.
The First Tier Tribunal for Scotland can enforce the tenants right to have the repairs carried out. This route is only available to tenants after they have reported the necessary repairs to their landlord and she or he has failed to carry them out. For further information please visit the Tribunal website.
Further information and guidance for both tenants and landlords is available from the Tribunal or by contacting our Homelessness and Advice section.
