Home to Stay – Security of Tenure Campaign
In 2013 we identified security of tenure as a major issue for tenants and launched the Home to Stay campaign for better tenancy conditions for renters.
Currently most tenants sign a contract known as a short assured tenancy. This contract will have an initial period of either 6 months or 1 year, after which point tenants go on to a rolling contract. This means they can be evicted at 2 months notice, without the letting agent or landlord having to give a reason for eviction.
Many private tenants are forced to move every few years, and not only is this expensive and stressful, but it makes it difficult for tenants to plan for their future and put down roots in a community.
The law in Scotland offers an another form of tenure,an assured tenancy , which is much better suited to the needs of longer term tenants. In an assured tenancy, the landlord can still force tenants to leave, but only if they have a good reason, for example because they haven’t paid the rent, or because the landlord needs to live in the property. The decision on whether prospective tenants get a short assured tenancy, or the greater legal protection of an assured tenancy, is left up to the landlord’s discretion, and they have little incentive to give their tenants more rights. This is why we are calling on the Scottish Government to abolish the short assured tenancy, and revert to the assured tenancy which is a better fit for tenants and good landlords alike.
Following from the success of our other campaigns, we have lobbied Edinburgh council, held public meetings and stalls as well as launching a home to stay site which collects stories from those renting privately.
Edinburgh Private Tenants Action Group’s first campaign was against criminal landlords in the city. After hearing dozens of stories of negligence including everything from toxic mould, to dangerous electrics and even harassment a group of tenants got together to take action, and Edinburgh Private Tenants Action Group was created.
The landlord campaign mobilised councillors and tenants with diverse tactics from lobbying, to public meetings and protests. The campaign got lots of press attention, and brought the issue of criminal landlords into the public eye.
Eventually following our campaign two landlords were banned in Edinburgh -including the notorious Mark Fortune. Edinburgh Private Tenants welcomed this decision, and were pleased the council have started to take the issue of criminal landlords seriously.
If you are having bad experiences with your landlord or letting agency, contact one of the advice agencies that we list here to get some support and advice.
There is a mandatory landlord registration scheme in Scotland, which aims to get rid of bad landlords. It is always a good idea to check to see if your landlord is registered. If they are not, you should report them to the council since it is a criminal offence, with a fine of up to £50,000 for not being registered.
It is also worth checking if your deposit is held in a protected scheme, if it is not, this is a crime, and should also be reported to the council.
One of the key issues facing tenants has been the charging of illegal premiums by landlords and letting agents. When EPTAG was founded the vast majority of letting agents charged an illegal premium to tenants wishing to rent their property. These premiums have been illegal in Scots law since the housing act of 1984, however many letting agents continued to charge fees to their tenants, claiming various loopholes that didn’t really exist.
Edinburgh Private Tenants Action Group decided to take action, in diverse and creative ways. We supported tenants to claim their fees back, and held protests outside letting agents. We lobbied for these fees to remain illegal and we responded to a parliamentary consultation on this issue.
The tenancy fees campaign was ultimately successful, in August 2012 the Scottish Government clarified the housing act to prevent letting agents and landlords claiming that there was a legal loophole. Since this ruling many letting agents have ceased to charge illegal fees.
Because the practice of charging tenancy fees was so widespread, the vast majority of tenants are still owed money charged unlawfully by letting agents and landlords. EPTAG continues to support tenants to claim these fees back, and have developed the guide below to support tenants to claim back their fees.
Claim your fees back guide
Disclaimer: This information was provided by an EPTAG member who has no legal qualifications, but has made a successful claim against a letting agent in order to recover tenancy fees which were charged illegally.
What are tenancy fees?
If your landlord or letting agency asks you to pay for anything other than the rent and deposit for your flat, that’s a tenancy fee. They might claim that this is for the administration costs involved in checking your references or setting up your lease, and least one Edinburgh letting agent also charges a fee to provide references for tenants who are moving elsewhere. Prices vary, but the going rate seems to be around £70-90 per person.
There are two very good reasons to object to this. First of all, by checking that a prospective tenant is a responsible person who’ll pay their rent on time and not trash the place, the agency is providing a service to the owner of the property rather than the tenant, so why should the tenant be expected to pay for it? Secondly – and more importantly – it’s illegal.
So how do I claim my tenancy fee back?
Step 1: Ask Nicely
The first thing you need to do is ask your landlord or letting agency to refund the money, explaining calmly and politely that they cannot legally charge you any additional fees, and that they are required by law to give it back. The best way to do this is send them a letter by recorded delivery, because then they cannot deny that the request was received at their offices.
Here’s a template you can use to write your own letter:
To Whom It May Concern
Administration fee paid for tenancy of [address]
On [date], I signed a lease for a property managed by [letting agency], where I am still currently resident. In order to obtain the tenancy, I was required to pay an administration fee of [fee amount]
It has come to my attention that section 82 of the Rent (Scotland) Act 1984 expressly prohibits landlords or letting agencies from charging their tenants for any fee other than their rent and deposit. Section 88 of the Act states that tenants who have been charged any additional fees are entitled to have this returned, and as such I am asking you to refund the full amount.
If I do not receive a response within 14 days, I will be forced to take this matter to the small claims court.
If you’re lucky, the letting agency might decide that it’s easier just to refund your fees at this stage, but in case they don’t, you’ll need to have proof that you’ve tried to resolve the matter yourself before you can move on to the next step.
Step 2: Raise a Small Claims Action
Going to Small Claims Court sounds a bit intimidating, but it’s really a lot easier than you might think. You don’t need to hire a lawyer because the small claims process is designed so that the average person can represent themselves, and in a case as straightforward as this one, it’s unlikely that you will be asked to argue your case. All you have to do is fill in some forms explaining why the letting agency owes you money, and return them to the Sheriff Court along with the court fee (£15 for claims under £200, or £65 for claims over £200), which you can even claim back from the landlord if you win.
You can download a copy of the form, which is called a summons, from the Scottish Courts website in either MS Word or pdf format (you need form 1b from the list). The form you download will include two copies – the “Pursuer’s Copy” and the “Defender’s Copy” – and you need to enter the same information in both.
Step-by-step guide to the form:
- The contact details of the court. For Edinburgh and the surrounding area, that’s:
Edinburgh Sheriff Court and Justice of the Peace Court
Sheriff Court House
27 Chambers Street
0131 225 2525
- Pursuer’s details: that’s you.
- Defender’s details: enter the landlord/letting agency’s name and address.
- “The pursuer claims from the defenders the sum of [amount] and the expenses of bringing the action.”
- 5.a Defender’s solicitor: unless the letting agency’s solicitor has already contacted you regarding this matter, put “none”.
5.b If you have paid the court fees electronically, include the reference here.
- This part is completed by the Sheriff Clerk, so leave it blank.
- This is your Statement of Claim. The Govan Law Centre have written a template for use in tenancy fee claims, or alternatively, there is guidance on the Scottish Courts website for writing your own.
All other parts of the form will be completed by the court staff.
You can send the completed forms and payment to the Sheriff Court electronically, by post, or in person. If you are concerned about the process, you might find it reassuring to return the form in person (please note that you will be searched on entering the building), as the court staff can check that the form has been filled in correctly, and answer any questions you might have.
Step 3: Wait for a Response
After you have submitted the paperwork, the court will serve (deliver) the summons to the letting agency. They will be given a deadline to respond, by which time they have to either admit liability, or dispute the claim.
In most cases, the cheapest option is for the landlord/letting agent just to give you the refund, so there’s a very good chance that this is what they’ll do. It’s easier for them because it saves them the hassle of going to court over something they can’t win, and it would cost them more to hire a lawyer to help them try to dispute the claim than it would to refund the fees.
Step 4: If You Have To Go To Court
This is unlikely, but if the letting agency dispute the claim, you may need to attend court or appoint someone else to attend on your behalf – this can be a friend, relative, or a representative of an organisation like the Citizens Advice Bureau. You will have several weeks notice if you have to attend court, which will give you time to prepare and seek advice if necessary, and you may even be able to claim for lost wages if you have to take time off work. The Scottish Courts provide guidance for attending small claims court, which includes a list of places that you can contact for free advice.
Remember that even if you have to go to court, the law is on your side. The legislation makes it very clear that it is illegal for a landlord or letting agent to ask you to pay any additional fees, so as long as you can show that what you paid wasn’t part of your rent or deposit, they have no excuse for not giving you a refund. Ideally, you should have a receipt (this is often bundled with your lease paperwork), bank statements showing how much you paid, or correspondence asking you to pay the fees. If you don’t have anything like this, try to get some evidence that the landlord or agent normally charge fees, which should be pretty easy because most of them advertise the fees quite openly.