What is a tenancy agreement
The tenancy agreement is a contract between you and your landlord. It may be written or verbal. The tenancy agreement gives certain rights to both you and your landlord. For example, your right to occupy the accommodation and your landlord’s right to receive rent for letting the accommodation.
You and your landlord may have made arrangements about the tenancy, and these will be part of the tenancy agreement as long as they do not conflict with law. Both you and your landlord have rights and responsibilities given by law, these are statutory rights.
The tenancy agreement can give both you and your landlord more than your statutory rights, but can't give you less than your statutory rights. If a term in the tenancy agreement gives either you or your landlord less than your statutory rights, it is an unfair term and cannot be enforced.
A tenancy agreement can be made up of:
- express terms - what is in the written tenancy agreement (if there is one), in the rent book, and what was agreed verbally
- implied terms - rights given by law or arrangements established by custom and practice - they don’t need to be written in your tenancy agreement
Express terms of tenancy agreements
Written tenancy agreements
In most cases your landlord must provide a written tenancy agreement. Your landlord must always provide a written tenancy agreement if you're a public sector tenant, or if you're an assured, short assured, or private residential tenant of a private landlord.
Your agreement might say you have a certain type of tenancy - but the type of tenancy you actually have might be different.
The tenancy you have depends on your situation, not what your agreement says.
The tenancy agreement should be signed by all tenants and your landlord. If there are joint tenants, each tenant should receive a copy of the agreement.
It’s good practice for a written tenancy agreement to include the following details:
- your name and your landlord’s name and the address of the property you’ll be renting
- the date the tenancy began
- details of whether other people are allowed the use of the property and, if so, which rooms
- the amount of rent payable - how often and when it should be paid, and how often and when it can be increased
- what the rent includes - for example, council tax or fuel
- whether your landlord will provide any services - for example, laundry, meals or maintenance of common parts and whether there are charges for these
- the notice period you and your landlord need to give to end the tenancy - there are rules about how much notice to give. This will depend on the type of tenancy and why it's ending
Use mygov.scot to create a Scottish Government Model Tenancy Agreement (MTA) for a private residential tenancy.
The agreement may also contain details of your landlord’s obligations to repair the property. Your landlord’s obligations to repair will depend on the type of tenancy. Check your tenancy agreement - it might give you more rights than your basic rights under the law.
For more information on your landlord’s obligations to repair, see our advice on getting repairs done if you're renting privately.
If you are experiencing problems with repairs you can get help from your local Citizens Advice Bureau.
Getting a written tenancy agreement
If your private landlord hasn't given you a written tenancy agreement, you could ask them for one. You could tell them that they are required to do so by law.
You could also contact the landlord registration unit at your local council. All private landlords in Scotland have to register with their local councils. It is a condition of registration that they carry out their legal responsibilities. If they don't, the council has the power to remove them from the register. This means that they can't rent out their property any more. Read more about private landlord's responsibilities.
If your landlord still refuses to give you a written tenancy agreement, you can apply to the First-tier Tribunal (Housing and Property Chamber) to have a tenancy agreement drawn up.
Get advice if you're thinking of applying to the First-tier Tribunal.
Verbal tenancy agreements
A tenancy agreement exists even if there is only a verbal agreement between you and your landlord. For example, you and your landlord may have agreed at the start of the tenancy how much the rent would be and when it will be paid, whether it includes fuel or whether your landlord can decide who else can live in the accommodation.
It’s harder to prove what was agreed if it isn’t in writing. This is because there’s often no proof of what has been agreed, or there may be a problem that isn’t covered in the agreement. You might also be able to prove what was agreed in other ways, for example with emails or text messages.
If you’re thinking of disputing or are trying to enforce a verbal agreement with your tenant or landlord, you can get help from your local Citizens Advice Bureau.
Implied terms of tenancy agreements
There are obligations you and your landlord have which may not be included in the agreement but which are given by law. These are called implied terms. These terms form part of the contract, even though they haven't been specifically agreed between you and your landlord.
Some of the most common implied terms are:
- your landlord must carry out basic repairs - for example, repairs on the structure of the property, and keeping the installations for the supply of water, gas, electricity, sanitation, space heating and heating water in working order
- you have the right to live peacefully in the accommodation without nuisance from your landlord
- you should use your home in a 'tenant-like' way - for example, by not causing damage and by using any fixtures and fittings properly
- you should provide access for any repair work that needs to be done
Rights covered by law are different depending on the type of tenancy.
What information and documents must the tenant receive
Before or at the start of your tenancy, your landlord must give you:
- a gas safety certificate
- an energy performance certificate - unless you live in some types of shared home
If your tenancy began after 1 December 2017 and you rent from a private landlord, your landlord must give you a pack of 'easy read notes' or 'supporting notes' explaining your rights and responsibilities along with your tenancy agreement. There is more information about the notes you should be given on the Scottish government website.
If you’re experiencing problems in getting documents or information from your landlord, you can get help from your local Citizens Advice Bureau.
Sham tenancy agreements
The rights given to you by law always override the rights that are stated in a written or oral agreement. An agreement which suggests that you or your landlord have less rights than those given by common law or statute is a sham tenancy agreement.
What an agreement states and what the tenancy actually is may be different. For example, your landlord may claim that the agreement is not a tenancy agreement but a ‘licence to occupy’.
Is the tenancy agreement 'unfair'
The tenancy agreement is a type of consumer contract so it must be written in plain language which is clear and easy to understand. It must not contain any terms which could be 'unfair'. An unfair term is not valid in law and cannot be enforced. This means, for example, that the tenancy agreement must not:
- make the tenant pay for repairs that are the landlord's responsibility
- let the landlord enter the property without notice
- let the landlord change terms without the tenant’s consent, unless there is a good reason
If you think your tenancy agreement may contain unfair terms you can contact your local Citizens Advice Bureau.
Paying fees to a landlord
If you are renting from a private landlord, you may have to pay a deposit. This is money paid to a landlord (or a letting agency acting on their behalf) as security against, for example, unpaid rent, damage to property or removal of furniture.
Most private landlords, or the letting agents, must pay tenancy deposits into one of three tenancy deposit schemes within 30 working days of the start of the tenancy. Find out more about tenancy deposits and what to do if your deposit isn’t in a scheme.
A private landlord or letting agency might ask for a deposit before you sign a tenancy agreement. It's sometimes called 'key money' or a 'holding deposit'. They must return the money to you once the tenancy starts, or if you decide not to take the tenancy. If they don’t refund you the money, it becomes an illegal fee, also known as a premium.
Landlords and letting agents can’t charge fees for registering with the letting agency, credit checks or administration fees. Any fees charged by the landlord to create or renew a tenancy agreement are also illegal. Find out more about illegal fees and deposits.
Changing the tenancy agreement
Normally a tenancy agreement can only be changed if both you and your landlord agree. If you both agree, the change should be recorded in writing, either by making a new written document with the terms of the tenancy or by amending the existing written tenancy agreement.
Ending a tenancy agreement
Your, or your landlord’s, right to end a tenancy agreement and your right to stay and be protected from eviction will depend on the type of tenancy you have.
Discrimination in tenancy agreements
Your landlord must not discriminate against you because of your disability, gender reassignment, pregnancy or maternity, race, religion or belief, sex or sexual orientation.
This means they might be breaking the law if they:
- rent a property to you on worse terms than other tenants
- treat you differently from other tenants in the way you are allowed to use facilities such as a laundry or a garden
- evict or harass you because of discrimination
- refuse to make reasonable changes to a term in the tenancy agreement which would allow a disabled person to live there
If your landlord has broken the law, you might be able to take action against them. Check if your problem is discrimination.