This is not intended as a precise statement of the law. You may wish to seek advice from an advice centre or solicitor engaged in private practice.
If you are renting out a self contained dwelling that doesn’t fall into one of the excluded categories, available through the Related Links section of this page, then you will probably be offering your tenant a private residential tenancy.
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.
Tenancies created prior to 1 December 2017:
Prior to 1 December 2017 an assured tenancy gave the tenant greater security of tenure and was suitable for properties where a landlord wished to rent out on a long term basis. However it is important to note that you cannot end an assured tenancy unless you have a valid ground for doing so. These grounds are laid out in the section on Grounds for Eviction, available from the 'Related Links' section of this page.
If you already have a tenant and they have moved into the property before 1 December 2017 and either haven’t signed a tenancy agreement or an AT5 was not served then they will be an assured tenant unless the property falls into one of the excluded categories.
Prior to 1 December 2017 if you wished to rent out the property on a short term basis, or if you wished to rent it out for a long time but with the ultimate aim of selling it, then you should have used a short assured tenancy.
A short assured tenancy is a tenancy that is for six months or more. Most short assured tenancies were for a fixed period of six months or a year to begin with and a clause is placed in the tenancy agreement that states they will continue from month to month thereafter. This simply means that the tenancy will continue on a monthly basis after the initial term and this can make it much easier to end the tenancy.
A tenancy is only a short assured tenancy if you served a Form AT5 on your prospective tenant before they sign the tenancy agreement and before they move into the property. It must also have been created prior to 1 December 2017 or it will be by default a private residential tenancy. You must have given your tenant a copy of the AT5 to keep and should have retained a copy yourself. It was advisable to get your tenant to sign the AT5 to state that they have read and understood it and to confirm that it was served before the creation of a tenancy. This meant that you would have proof of serving the AT5 if there is a dispute later.
In addition to the AT5, the tenancy agreement should state that it was a short assured tenancy and that an AT5 had been served. Again, this is further proof that the AT5 was served.
For sample documents relating to tenancies please click on the 'Sample Tenancy Documents' link within the related links section.