On 1 December 2017, the Private Housing (Tenancies) (Scotland) Act 2016 (“the 2016 Act) will come into force and introduce Private Residential Tenancies (PRTs). After 1 December, all residential tenancy agreements entered into in Scotland will be PRTs, though any existing Assured Tenancies (ATs) or Short Assured Tenancies (SATs) will continue under the current legislation.
One requirement of the 2016 Act is that all landlords must provide tenants with a written tenancy agreement. Ahead of the introduction of PRTs on 1 December, the Scottish Government has published a Model Tenancy Agreement (MTA) which may be downloaded and used free of charge.
The MTA contains 39 clauses; 24 of which are mandatory and can be clearly identified as they are highlighted in bold text. The remaining 15 clauses are discretionary and may be included at the discretion of the parties, depending on their relevance to the parties or the property. For example, for many properties the maintenance of garden ground may not be relevant.
The mandatory clauses must feature in all tenancies which are prepared using the MTA, though some of them do allow for some variation or amendment by means of multiple choice or non-mandatory parts. Conversely, the discretionary clauses allow for almost complete freedom of variation with just clause 28 (alternations) containing a mandatory paragraph within a discretionary clause.
Among the discretionary clauses, clause 37 is an “additional terms” clause which allows the parties to insert their own conditions of whatever nature may be agreed between them, allowing the MTA to be varied to meet any irregular requirements.
Ahead of entering into a PRT, the landlord must provide the tenant with a copy of the MTA and the Easy Read Notes which were also published by the Scottish Government. These notes explain the purpose and effects of each clause (mandatory and discretionary) contained in the MTA and allow tenants to make an informed decision about the lease they are entering into.
Although it is envisaged that most landlords will adopt the MTA, it is not a requirement of the 2016 Act that all PRTs must use this model. As with ATs and SATs, landlords will be free to use their own style tenancy agreement, however, it must contain nine statutory clauses and comply with section 7 of the 2016 Act. These requirements are outlined in the Private Residential Tenancy Statutory Terms Supporting Notes (“the Supporting Notes”).
Any landlord who wishes to use their own style tenancy agreement must also provide their tenant with a copy of the Supporting Notes instead of the Easy Read Notes.
Landlords will no longer be required to provide tenants with the Scottish Government’s Tenant Information Pack as this information is now contained within the Easy Read Notes and the Supporting Notes. Tenants will not be required to sign any equivalent of the AT5 Notice, which they must currently sign prior to entering into a SAT, as all residential tenancies will be PRTs and so no additional notice will be required.
It is clear when reading the Easy Read Notes together with the MTA that they have been drafted together in order to make PRTs easier to enter into and simpler to understand than their predecessors had been.