Private Sector Tenants
All local authorities have a legal duty to ensure that good quality housing advice and information is available in their area. Orkney Islands Council does this through its Housing Advice and Information Section and by providing funding to the Citizens Advice Bureau.
The role of our Advice and Information Service is to prevent homelessness by providing good quality, free, confidential housing advice.
Advice is available to everyone, across all tenure types, including owner occupiers and landlords. The most common enquiry received is from tenants in the private sector who have been served with a notice to quit and are not sure what their options are. Often these notices are not valid and the tenants have the right to remain in their home.
Private Sector Tenants - Frequently Asked Questions
What type of tenancy will I get?
Grounds for Eviction - 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?
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 newspapers 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 can also check for available private lets online or by contacting the Housing Division. Our property advertising service – Orkney Lets, available through Related Links on the left of this web page – allows private landlords to advertise available properties via the Council website. Details of the properties are also available in paper format at the Council Offices, Kirkwall.
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 Housing Benefit.
Housing Benefit 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 Related Links on the left of this web page.
Remember that you will have other bills besides the rent, such as:
- Council Tax - see Related Links on the left of this web page
- Electricity or Gas
- 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 the Citizens Advice Bureau, Anchor Buildings, Kirkwall. A link to their website can be found at Related Sites on the left of this page.
Once you have found a private let and signed the tenancy agreement you can submit a claim form for Housing Benefit. The forms are available from the One Stop Shop Council Offices, the Stromness Cash Office and Job Centre Plus - a link to their website can be found at Related Sites on the left of this page. If you would like any help filling in the form please contact the Housing Benefit Section.
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 – ie weekly, monthly, in advance or in arrears
- How the rent should be paid – ie by standing order, cheque, etc
- What is included in the rent – ie 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 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?
It can be difficult to tell what type of tenancy you have and if you have any doubts you should contact the Housing Division for advice. Although some tenancy agreements do state the type of tenancy being offered this is not always accurate. The Housing Division offers a free, confidential advice and information service and you can contact us on 01856 873535 or visit us at the One Stop Shop Council Offices, School Place, Kirkwall.
If you have a resident landlord then you will not have an assured or short assured tenancy. Please see the section on Resident Landlords for more details
There are two main types of tenancy in the private sector – assured and short assured. An assured tenancy may not have an end date and gives you greater security, unless it is a winter let. 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 a court order for eviction has been granted. For more information on the reasons your assured tenancy can be ended see Grounds for Eviction.
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. 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.
Winter lets are quite common in Orkney due to the seasonal nature of our tourist industry. Many of the “holiday homes” that are rented out to tourists in the summer months are offered at a lower rent for 6 – 8 months in the winter.
Sometimes winter lets are rented out using a 6 month short assured tenancy but many are simply rented using a verbal agreement or a standard lease and are therefore assured tenancies. If the property has been used as a holiday let before, it is possible that the landlord will be able to end the tenancy using Ground 3 of the Housing Scotland Act 1988, see Grounds for Eviction for more details. However the landlord must have informed the tenant in writing that the tenancy is only being offered as a winter let and that possession may be sought using Ground 3 prior to the tenant moving in.
Tenants living in winter lets do not have much security as the landlord will normally require the property back in March or April in order to let it to summer visitors. March, April and May are the busiest months in Orkney for people looking for alternative accommodation and there are normally very few properties available. Therefore many people find it very difficult to secure accommodation when their winter let comes to an end. If you are staying in a winter let you should look for alternative accommodation throughout the period of the let and contact the Housing Division for advice and assistance as early as you can.
Tenants of winter lets have the right to written notice to quit and landlords still require a court order to end the tenancy. If you do receive a notice to quit you should contact the Housing Division for further advice.
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 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 Housing Benefit. 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 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 the Housing Division immediately for advice and assistance.
Grounds for Eviction – Assured Tenancies
Assured tenants can only be evicted on certain grounds. These grounds are set down by the Housing Scotland Act 1988 and are summarised below. Please note that this is not an exact statement of the law. The grounds are split into two main categories – mandatory grounds and discretionary grounds. If a mandatory ground is used, the Sheriff must order possession but if a discretionary ground is used, it is up to the Sheriff to decide if it is reasonable to order possession or not.
Mandatory Grounds
Ground 1
Where prior to the tenancy being granted it was the landlord’s principal home or when the landlord requires the house as his or her principal home. The landlord should have notified the tenant that this ground might be used prior to the beginning of the tenancy.
Ground 2
Where the landlord has a mortgage on the house and as a result of default the landlord is seeking repossession. The landlord should have notified the tenant that this ground might be used prior to the beginning of the tenancy.
Ground 3
Where the house is let as an off season holiday let of not more than 8 months. The property must have been used as a holiday let in the previous 12 months. The landlord must have notified the tenant of this prior to the beginning of the tenancy.
Ground 4
Prior to the let the house was let as a student let by a specified educational institution, such as a university, and it is let for no more than 12 months. Again the landlord must have notified the tenant of this.
Ground 5
The house is required for occupation by a minister or full-time lay missionary. Again the landlord must have notified the tenant of this.
Ground 6
Where the house is going to be demolished or substantial reconstruction carried out and this work can only be carried out if the tenant gives up possession. The landlord must pay the tenant reasonable expenses for removing if possession is granted on this ground.
Ground 7
Where the former tenant has died and the current tenant has inherited the property. This does not apply if a spouse has inherited the property from the original tenant. The landlord must start proceedings for possession within 12 months of the former tenant’s death.
Ground 8
The tenant is at least 3 months in rent arrears both at the time of serving notice and at the date of the court hearing.
Discretionary Grounds
Ground 9
Where the landlord has offered suitable alternative accommodation. The landlord must pay reasonable moving expenses if possession is granted on this ground.
Ground 10
Where the tenant has given notice to quit and where she or he remains in the property. The landlord must start proceedings no later than 6 months after the notice to quit expired.
Ground 11
Where the tenant persistently delays in paying rent. The tenant does not have to be in arrears at the start of court proceedings.
Ground 12
Where there are rent arrears and the tenant is in arrears on the date when the notice was served and on the date of starting proceedings.
Ground 13
Where there is a breach of the tenancy agreement, other than the obligation to pay rent.
Ground 14
Where there is deterioration in the condition of the house or common parts due to the tenant or a lodger or sub-tenant.
Ground 15
The tenant, or anyone living with him or her, has caused a nuisance or annoyance to neighbours or has been convicted by a court of immoral or illegal use of the premises.
Ground 16
Where there is deterioration in the condition of the furniture owing to ill treatment by the tenant or someone living with him or her.
Ground 17
Where the tenancy was let because of the tenant’s employment and the tenant is no longer in that employment.
Notice Period – Assured Tenancies
If your landlord wants to end your assured tenancy there are certain steps which must be taken. First a notice to quit must be served. The length of notice required varies according to the length of your tenancy:
- if the property is let by the week, fortnight or month at least 4 weeks notice is required
- if the property is let by the quarter (3 months), at least 31 days
- if the property is let for 6 months or by the year, at least 40 days
Please note that if your tenancy agreement does not state the length of your tenancy then it will probably be assumed to be for a year.
A Notice to Quit does not end your right to remain in the property but it does bring your contracted tenancy to an end.
In order to end your right to remain in the property your landlord must serve a “Notice of Proceedings for Possession”. This is done using Form AT6.
The length of notice required in the AT6 depends on the grounds being used for eviction. See Grounds for Eviction – Assured Tenancies for more details.
If Grounds 1, 2, 5, 6, 7, 9 or 17 are being used then two months notice is required. For any other ground, two weeks notice is required.
Once the time period set out in the AT6 has expired, your landlord must still gain a court order before you have to leave.
If you are served with any form of notice from your landlord you should take independent advice to check if it is valid and what rights you have. In Orkney, housing advice can be provided by either Orkney Islands Council or the Citizens Advice Bureau.
It is a criminal offence for a landlord to try and force a tenant to leave before gaining a court order. If your landlord is harassing you to leave the property, or withdrawing essential services such as water, electricity etc you should contact the police, as this is a criminal offence. You can also seek advice from the Housing Division or the Citizens Advice Bureau. A link to their website can be found at Related Sites on the left of this page.
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 the Housing Division or the Citizens Advice Bureau. A link to their website can be found at Related Sites on the left 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 stationary 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 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?
The great majority of 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 the Housing Division.
A link to the PRHP website can be found at Related Sites on the left 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 Private Rented Housing Panel.
The Private Rented Housing Panel (PRHP) 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 PRHP website.
Further information and guidance for both tenants and landlords is available from the PRHP or by contacting the Housing Division.