Since December 2017, the First Tier Tribunal Housing and Property Chamber (‘the FTT’) in Scotland has had exclusive jurisdiction to deal with applications made in relation to residential tenancies. Simultaneously, a new type of tenancy was created – the private residential tenancy. Private residential tenancies replace both short assured and assured tenancies, providing greater protection to tenants and with the aim of clarifying tenancy law overall by reducing the guesswork when it comes to the interpretation of a lease. With the introduction of private residential tenancies happening at the same time as the FTT’s jurisdiction was widened, the majority of legal professionals and the public know the FTT primarily as a place to seek or defend an order for eviction. However, there are a wide range of issues that the FTT can be utilised for in pursuit of solutions that extend far beyond the simple landlord-tenant dispute.
Where there has been a proposed rent increase at the instance of the landlord and the tenant is unhappy with the new level of rent, an application can now be made to the FTT to assess the rent level and make a determination on whether the increase is fair. This applies to private tenants in short assured tenancies, assured tenancies, private residential tenancies or social housing tenancies. There are limits on the determinations that the FTT can make: they will look to similar properties in the area and no determination will be made if they cannot identify enough similar properties as comparators; and they will only set a lower rent if the landlord is charging significantly more than the going rate for that particular area. If either party wants a hearing, one will be held. The FTT is not limited to merely the rent level requested by the landlord or the tenant and can impose any level of rent that they determine to be fair. The parties are then permitted to come to an alternative arrangement if an alternative level of rent can be agreed by both landlord and tenant. Such hearings are designed to be informal, as is the FTT in general as part of the drive to make the system more accessible to all.
2.Drawing-Up of Tenancy Terms
Under Section 10 of the Private Housing (Tenancies) (Scotland) Act 2016 (‘the 2016 Act’), landlords have a duty to provide tenants with a document which sets out all the terms of the tenancy. In a private residential tenancy, where a landlord has failed to provide a written document containing all the terms of the tenancy, an application may be made by a tenant or by a landlord to have the FTT determine the terms of the tenancy. The FTT can then either (a) draw up a document which accurately reflects all of the terms of the tenancy; or (b) declare that any written terms are already satisfactory.
3.Property Factor Disputes
Homeowners are able to make complaints regarding property factors to the FTT on 2 grounds: (1) that the property factor’s conduct falls short of the required standard; and (2) that the property factor is failing to carry out their duties appropriately. There is a code of conduct for property factors which sets out the expectations on a property factor. Before escalating any complaint to the FTT, a homeowner should notify the property factor of the reasons why the homeowner feels that the property factor is not fulfilling the requirements of the role. If an application is made and accepted, there will be a hearing on the alleged failings of the property factor. If a determination is made that the property factor is not meeting the adequate standards, a property factor enforcement order may be issued by the FTT. Compliance with the order is necessary and failure to comply is a criminal offence.
In Scotland, all landlords must be registered with the local authority of the property which is being let. Every 3 years, the application for registration must be renewed. Failure to register can result in a fine of up to £50,000. Where a landlord’s application for registration has been refused by the local authority, or parties are seeking an extension of time for determination of the application for registration, an application should be made to the FTT. Landlords must be registered in order to legally lease properties and whilst an application for registration is ongoing, the landlord is permitted to lease the property meantime. There are therefore practical reasons that a landlord may want to utilise the FTT’s functions in order to obtain registration.
Residential landlords in Scotland are required to lodge the deposit received from their tenant in a safety deposit scheme at the outset of the tenancy. This is primarily for the protection of tenants and the failure to do so can result in a penalty being imposed of up to 3 times the deposit amount. Landlords can seek to have the returnable sum reduced in respect of damage caused to the property. A dispute over the amount returnable or a claim regarding the landlord’s failure to lodge a deposit can be addressed by way of application to the FTT.
6.Letting Agent Conduct
As with property factors, letting agents are subject to scrutiny by the FTT. Letting agents are bound to abide by a set code of practice, devised by the Scottish Government. If a tenant, or indeed a landlord, feels that a letting agent has fallen short of the standards expected of them, they may make an application the FTT although any initial complaint should first be made to the letting agent. If the FTT finds that a letting agent has failed to comply with the code of practice, they may issue a Letting Agent Enforcement Order, determining what action the letting agent must take to rectify their failures. Additionally, a fine may be imposed, payable by the letting agent.
Where a tenancy has been brought to an end by an eviction order and the tenant believes that the FTT was misled into issuing an eviction order, an application can be made to the tribunal for a wrongful termination order under Section 57 of the 2016 Act. Additionally, an application can be made if the tenant believes they were misled into ceasing to occupy the property. Landlords must exercise caution when attempting to end tenancies as false representations may result in an order being made against them for an award of up to 6 months’ rent.
8.Right of Entry
Where a landlord has been denied access to their property following a notice requesting they be allowed in, an application can be made to the FTT in order that the FTT can assist the landlord in facilitating access. The tenant has the opportunity to make representations to the FTT if they disagree with the landlord’s application and to provide suitable dates and times for access. In most instances, a valid application will result in assistance being provided. However, there are some instances in which the FTT can reject a valid application being: when the application is vexatious; where the dispute has been resolved; where the FTT has good reason to believe it would not be appropriate to assist the landlord in gaining access; where the FTT believes that the application is being made for a purpose contrary to the Act; or where a substantially similar application has already been made and determined.
Far from being a one-trick pony, allocated solely for evictions, the FTT has a wide range of functions and should theoretically relieve some of the pressure from the sheriff court. In addition, it allows for housing issues to be heard in front of and determined by a specialised panel. One of the attractions of the FTT is the lack of court fees and expenses – lodging an application is free and there will be no expenses awarded against the losing party unless the losing party has behaved unreasonably.
Rent assessment, resolution of property factor disputes and landlord registration issues are just a few of the types of cases that the FTT has the ability to make determinations on. A list of the types of applications that can be heard can be found at the FTT’s website and if you need assistance in making an application to the Tribunal, please get in touch with a member of our Dispute Resolution Team to see how we can help.
Rebecca Thompson, Solicitor
The opinions expressed in this blog are of the author only and do not necessarily represent the opinions of Blackadders LLP.
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