House Lets – renting out your house
It is particularly important to get documentation and procedure right.
This applies both at the beginning and the end of a tenancy.
If you don’t, you may be left with a tenant who cannot be removed or, at best, significant cost from having to raise court action – which is often difficult to recover from the tenant even if the court awards expenses (costs) in your favour.
If you own a property and want to let it out to residential tenants, we can help you set up the appropriate lease.
A Short Assured Tenancy is usually best
We find that a short assured tenancy is generally the best type of domestic lease to use. The main benefit it provides from the landlord’s point of view is confidence that, within certain time limits that cannot be changed, you will be able to get back possession of the property when you need it. The notice period you need to give is at least two months before the next termination date of the lease.
A short assured tenancy must be for an initial period of at least six months to be a valid short assured tenancy. There are also certain forms that must be given to the tenant(s) at the outset of the tenancy to ensure it is properly set up as a short assured lease.
In the case of many domestic leases, there are now strict requirements about tenants’ deposits being lodged with an approved scheme. Financial penalties can apply if the landlord fails to comply with their duties. This is discussed elsewhere on our website – CLICK HERE for more details about tenancy deposit requirements.
Most short assured leases will provide for the lease to continue on a monthly or two-monthly basis on expiry of the initial period of the lease. If the lease is silent on that matter, the lease automatically renews for the same period as the initial lease. So, if the initial lease is for one year, the lease “tacitly relocates” for another year, and so on.
Possible problems if you do not set up the lease correctly
If your lease has not been properly set up, there can be problems recovering possession of the property when you need to do so.
We are often approached by landlords where the written lease is defective in that it does not constitute a short assured tenancy – or even where there is no written lease at all.
In these situations, it tends to be an assured tenancy which has been set up rather than a short assured tenancy. The tenant under an assured tenancy has good security of tenure and is very difficult to evict unless they are in breach of the tenancy conditions in some way – e.g. having fallen into rent arrears or damaged, neglected or misused the property.
Why you must not take the law into your own hands
In such situations, it can be tempting for you as the landlord to take the law into your own hands and try to force the tenant to leave by some means or other.
It is generally the case that no occupier of property can be evicted without a court order and there are possible criminal penalties if you harass or otherwise try to interfere with the tenant’s occupation of the property. Accordingly, it is crucial to get legal advice as soon as possible so the best way forward can be found.
Pressure from local authorities due to lack of public sector rented properties
In most local authority areas in Scotland – Moray included – there is a shortage of public-sector housing for tenants.
This has resulted in local authorities generally only being willing to re-house tenants having to leave private lets “at the last minute” – often only after a Sheriff Court decree for recovery of possession of heritable property has been granted. It also means local authorities are advising private sector tenants as to their rights in the face of private landlords’ attempts to evict them.
If the local authority considers that the private sector tenant might have good grounds to avoid or substantially delay their eviction from their current tenancy, there will be pressure on that tenant to argue their case – otherwise, the local authority may be able to argue they have become “intentionally homeless”, thus restricting the authority’s duties to that person in terms of rehousing them.
All of the above emphasises how important it is to get it right, if possible, both at the time you set up a lease of domestic property and at the stage you are thinking that you need to recover possession of the property for whatever reason.
Contact us for help
We are here to help and all initial enquiries are free of charge and without obligation.
We need to get an idea of the nature of your “problem” before we can say whether or not we will be able to assist you.
Peter Brash or one of his colleagues can be contacted via 01343 544077. Peter can be contacted directly on 01343 564813 or by email at firstname.lastname@example.org Alternatively, send us a Free Online Enquiry via this website.