The Basics

Top Scottish lawyer Austin Lafferty discusses the legal points and pitfalls to look out for when renting your home.

When you rent your home, you have a contract with your landlord, and you are protected by specific laws and statutes. Landlords cannot just decide to make life difficult for their tenants - and if they do, there are plenty of legal remedies available.

Remember:

• You cannot be charged a fee or commission for the provision of a let property.
• You are entitled to a rent book supplied by the landlord if the rent is paid weekly.
• You are usually entitled to a written lease clearly setting out the rights and duties of both sides in advance of taking the let.
• If the property is in a bad state of repair or develops any structural defects or dilapidation, the landlord has to make the place habitable - unless you caused the damage.
• You cannot be thrown out or have the locks changed against you when you are out even if you are behind with the rent or in dispute with the landlord. Such actions are a criminal offence and you should report any intimidating behaviour to the police.
• The landlord cannot end your tenancy just because he wants to. It can take a long time, and may be defeated by the tenant.

Laws of tenancy

The laws of housing and rental are quite complex, and there are different types of lease, but most private tenancies now are assured tenancies or short assured tenancies. The main thing about these leases is that they give you security of tenure - you are entitled to stay in the house or flat unless the landlord can claim certain legal grounds to repossess. There are 17 of these legal grounds, divided into two categories. If the landlord can meet one of the first group, a court MUST allow him to evict you. These include:

• If the landlord genuinely needs the house back as a main residence,
• If the let is to students or is for holidays only,
• If the house is to be demolished,
• If there are three months' arrears of rent unpaid

If the landlord meets any grounds in the second category, repossession depends on whether the court sees fit. The sheriff will have to decide if it is reasonable to evict you, and if he refuses, your tenancy can continue for as long as you like.

These grounds include:

• If there is suitable alternative accommodation for the tenant
• If the tenant's notice to quit has expired
• If there has been persistent delay in paying rent
• If the house has deteriorated through neglect or damage by the tenant, if the tenant has caused a nuisance, or if the tenant has used the house for immoral purposes.

It takes months for even the best landlord to get the worst tenant out, so security of tenure is a powerful weapon to use.

Another weapon is withholding rent. Unless specifically excluded by your lease, you can withhold rent in the event of a default by the landlord - for instance, if he fails to carry out necessary repairs. You can also take the landlord to court for damages if you have to get the repairs done yourself because he has refused or neglected to - but simply not paying until he keeps his side of the bargain is often the best way of grabbing his attention.

You can also ask the local council to issue either an improvement notice or a repair notice on the landlord. Speak to their Housing Department or Environmental Health Department - there are several things they can try. There is also the Citizens' Advice Bureau, and an experienced lawyer will be able to assist - legal aid is available, subject to your means.

Signing the lease

Your lease is a very important document and is a legal contract. If you are asked to sign a lease, read it first and take it away to study it, asking yourself a series of what if questions: What if the place burns to the ground? What if the landlord comes in when I am not there? What if there is a break-in and my stuff gets stolen?

If the lease is not to your liking, it is open to both sides to agree amended or different terms. Remember - you cannot be made to sign.

Make sure the landlord has legal authority to lease the property as owner or agent, and that he is who he claims to be - ask for ID, and make sure you get it. Ask for documents to prove identity if the landlord is an individual and not a professional letting company or agent. A proper landlord will have no problem with this.

Insurance is also crucial - you are entitled to know what insurance the landlord has and if it covers you and your property in the event of a break-in, a fire, or other calamity. Speak to a general insurance broker or company to make sure you are insured for anything the landlord lacks.