Legal stuff for landlords

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As landlords you must abide by an ever-growing number of rules and regulations, and we will keep you updated with any changes necessary to ensure compliance as per our Terms of Business.  Some of the things you will need to consider are listed below. Please note we do not currently offer property management for HMOs, and as the law is slightly different for these, we suggest you contact an expert in this field.

Whilst what is written here only covers your legal responsibilities as a landlord, you might also wish to take advice on certain areas where best practice is advisable. There is no legal obligation to provide fire blankets in kitchens or smoke alarms in home offices, for instance, but it would certainly be prudent to do so. Contact us if you would like more information about this or anything else here.

Carbon monoxide alarms

Landlords must have carbon monoxide (CO) detectors fitted in their properties to comply with the Repairing Standard and further information about the types of alarms available can be found in the Building Standards Domestic Technical Handbook.

These must be long-life battery units OR mains-powered detectors and should be fitted in any space which contains a carbon-based fuel appliance (excluding cooking appliances), for example a gas/oil/wood pellet boiler, gas/oil fire, wood burning stove or open coal/coke fire.

There should also be one in any bedroom or living room which is bypassed by a flue.

Detectors must comply with BS EN 50291-1:2010+A1:2012 and, where hard-wired or wireless installations are adopted, applicable European directives which are in place (for now!). Combined smoke/CO detectors may be installed, providing they meet the appropriate requirements of BS EN 50291 with regard to CO detection/alarm activation and the requirements of BS EN 14604 with regard to smoke detection/alarm activation.

There are rules on the positioning of detectors including that they should in most cases be 1-3 metres from the appliance, 30cm from any walls (if ceiling mounted) and 15cm below ceilings (if wall mounted). CO detectors have expiry dates printed on them and must be replaced before that date is reached, and must have an integral sounder.

Where the combustion appliance is located in a small space it may not be possible to locate the detector within that space. In such circumstances the detector may be located at the appropriate distance outside the space.

A carbon monoxide detector should not be sited:

  • in an enclosed space (eg: in a cupboard or behind a curtain)
  • where it can be obstructed (eg: by furniture)
  • directly above a sink
  • next to a door or window
  • next to an extractor fan
  • next to an air vent or similar ventilation opening
  • in an area where the temperature may drop below -10°C or exceed 40°C, unless it is specifically designed to do so
  • where dirt and dust may block the sensor
  • in a damp or humid location or
  • in the immediate vicinity of the cooking appliance.

The provision of a carbon monoxide detection system should not be regarded as a substitute for the correct installation and regular servicing of a combustion appliance.

Consent from your mortgage lender to let your property

If you have a mortgage you must obtain consent from your mortgage lender before you rent out your property.

Deposits

Landlords are legally obliged to register all tenants’ deposits with one of three government approved schemes in Scotland: Letting Protection Scotland, Safedeposits Scotland, or My Deposits Scotland. These companies will hold the deposit for the duration of the tenancy and release it at the end. There are some exceptions to which tenancies are eligible for these schemes and information about this can be found here.

Electrical safety

Landlords are legally obliged to ensure that their rental property and any electrical equipment they provide is safe for a tenant to use.

The Housing (Scotland) Act 2014 requires landlords to have fixed wiring checks carried out at least every five years; this is known as the Electrical Installation Condition Report or EICR. This report will include any items which are hard-wired (eg: some fridges or ovens etc) and must be documented on a specified form in order to be compliant with the Repairing Standard. New build/newly rewired properties will meet the standard provided an in-date Electrical Installation Certificate (EIC) is in place.

Any appliances that are provided by the Landlord for tenant use which have a plug (eg kettle or hoover) must be included on a PAT or Portable Appliance Test. The PAT can also be carried out at a different time to the EICR, provided both are carried out at least every 5 years. It is advisable to have the checks carried out more frequently than five-yearly if recommended by an electrician; it is usual for high-use equipment which is handled by the tenant to be checked every 2 years, for instance. A brand-new appliance does not need to be PAT tested for the first year, but it should be listed on the PAT report and the date that its first test is due clearly recorded. All checked equipment must have test labels placed on them and the PAT must be documented on a specified form to be compliant with the Repairing Standard.

Electricians who carry out EICRs should be a member of SELECT, NAPIT or NICEIC or be able to complete the checklist in Annex A of the guidance. The PAT can be carried out by a landlord or other competent person provided they have undergone relevant training.

To recap, everything in the property which uses the electrical supply must be on either the EICR or PAT unless it belongs to the tenant.

Energy performance certificate

Landlords in Scotland have a legal duty to provide all new tenants with an Energy Performance Certificate (EPC) before they move into a property, so that tenants can understand how much energy they are likely to use and the financial and environmental costs associated with it. Landlords will be fined for failing to do this. It is also a criminal offence to grant a lease without an EPC on any building that requires one.

If you purchased your property after December 1st 2008, the seller will have been legally required to provide you with a Home Report for marketing purposes, which would have contained an EPC. If you as a landlord have not implemented any energy-related improvements since then, it will be fine to use this EPC as it has a lifespan of 10 years. If you have performed any upgrades relating to energy efficiency, then you will need to get it refreshed at a cost of approximately £75 + VAT.

Domestic EPCs can be downloaded free of charge from the Scottish EPC Register.

The Scottish Government plans to have minimum EPC regulations (which were postponed due to Covid-19) come into force on 1 April 2021. The regulations require private rented sector properties in Scotland to achieve at least:

  • an EPC of D at change of tenancy from 1 April 2022, and
  • an EPC rating of D on all properties by 31 March 2025.

The regulations will provide for some exemptions, including where:

  • It is not technically feasible to carry out improvements
  • Where other owners in a block of flats refuse consent to do work to common parts of the building
  • Where tenants refuse consent for work
  • Where permission to carry out work to a property which is listed or in a conservation area cannot be obtained
  • Where the cost of improvements needed exceeds £10000.

Landlords will only be required to carry out work where the cost of purchasing and installing it can be financed by means of funding provided by a grant or loan from Scottish Ministers. The Scottish Government has set up a Private Rented Sector Landlord Loan which is interest free for those with five or fewer properties or at an interest rate of 3.5% for those with larger portfolios.

Local authorities are expected to be responsible for enforcing the standard. Fines could be levied on those owners who do not comply with the minimum standard or provide false or misleading information on the exemptions register.

Home Energy Scotland can visit your property and provide a free impartial advice service on what improvements might be feasible and economical.

Furniture must meet fire safety regulations

Fire safety regulations vary according to the type of property you rent out and all landlords must abide by The Furniture and Furnishings (Fire) (Safety) (Amendment) Regulations 2010. You can read the legislation in full here.

It is now an offence to supply furniture in a residential property to be let which does not comply with the regulations. These apply to beds, bed-heads, sofas, children’s furniture, garden furniture suitable for use in a dwelling, cushions, pillows, stretch or loose covers for furniture and other similar items. The regulations do not apply to carpets, curtains and bedding (including duvets and mattress covers).

All relevant labels must be left on furniture too so that a tenant is able to see at a glance that the item is compliant. If you need any more advice on aspects of this, you can contact Trading Standards or the fire service.

Gas safety

Landlords are legally bound to ensure that gas appliances and gas installation pipe work are checked for safety at least once a year by a Gas Safe registered installer. In addition, accurate records of safety inspections and any work carried out must also be kept and the current safety certificate must be issued to the occupier within 28 days of the annual check. New tenants must receive a copy prior to them taking occupation of a property.

Under the regulations any appliance that does not conform can be immediately disconnected and any faulty equipment which results in the death or injury of an occupant will lead to the fining and prosecution of a landlord for failure to protect their tenant. For more detailed information on gas safety see the Heath and Safety Executive’s (HSE) leaflet on Landlords: A Guide to Landlords’ Duties here and consult the HSE Gas Safety webpage here.

HMRC

You will need to inform HMRC if you are landlord and collecting rents from a property that you own. If you live abroad the regulations are different and may be accessed here.

Landlord insurance

Insurance is not a legal requirement, but if you have a mortgage on your buy-to-let property, the lender will usually insist that appropriate buildings insurance is in place. Many insurers offer specific landlord insurance so it is always worth shopping around to see what is on offer. Consider a policy that covers you for accidental and malicious damage, subsidence, loss of rent and one that adequately protects your contents too if you have a furnished let. While the tenant is responsible for insuring their own possessions, it would be prudent to make sure yours are protected too.

Landlord registration

Since 2006, all private landlords letting properties in Scotland must apply for and gain registration in the register of landlords held with the Local Authority. This is to ensure that all private landlords in Scotland are fit and proper to be letting residential property. You can apply online to register as a landlord. The current application charges for this area are £55 per landlord and £11 per property.

Legionella risk assessment

Landlords are responsible for the water systems in their properties and have a legal duty to ensure that the risk of their tenants being exposed to Legionella is properly assessed and controlled. All water systems require a risk assessment, but not all systems require elaborate control measures. A simple risk assessment may show that there are no real risks from Legionella, but if there are, implementing appropriate measures will prevent or control these risks.

Any competent person may carry out a Legionnaire’s Disease Risk Assessment, providing they have an understanding of:

  • different types of water systems and any associated equipment in the property in order to conclude whether the system is likely to create a risk from exposure to Legionella;
  • Legionella bacteria and the factors which increase the risk of an outbreak in a domestic setting;
  • The control measures which could reduce the risk in a domestic setting.

Many landlords can assess the risk themselves and do not need to be professionally trained or accredited. If you do not feel competent or inclined to assess the risk yourself, the in-person risk assessment that we carry out currently costs £54 including VAT. Please note these checks are not desk-based and must be carried out in person.

The Health and Safety Executive have produced technical guidance on Legionnaire’s disease for landlords, which may be read in full here.

Repairs

Landlords are responsible for the maintenance of and major repairs to a property. This includes repairs to the exterior and structure of the property, as well as internal heating and hot water installations, basins, sinks, baths and other sanitary installations. Private landlords have a duty to ensure that the property they rent to tenants meets the Repairing Standard as laid out in the Housing (Scotland) Act 2006 Section 13, part (1):

  • The house is wind and watertight and in all other respects reasonably fit for human habitation
  • The structure and exterior of the house (including drains, gutters and external pipes) are in a reasonable state of repair and in proper working order
  • Installations in the house for the supply of water, gas and electricity and for sanitation, space heating and heating water are in a reasonable state of repair and in proper working order
  • Any fixtures, fittings and appliances provided by the landlord under the tenancy are in a reasonable state of repair and are in proper working order
  • Any furnishings provided by the landlord under the tenancy are capable of being used safely for the purpose for which they are designed, and
  • The house has satisfactory provision for detecting fires and for giving warning in the event of a fire or suspected fire.

Landlords are also responsible for any additional damage they may cause inadvertently while attempting repairs. If you want to read more, you can find the document in full here.

Smoke alarms

The Scottish Government has produced statutory guidance on the requirements for fire, smoke and heat detectors, which can be read here.

It states there should be at least:

  • one smoke alarm in the room which is most frequently used by the occupants for general daytime living purposes, and
  • one smoke alarm in every circulation space on each storey, and
  • one heat alarm in every kitchen, and
  • all alarms to be ceiling mounted and manufacturing instructions should be followed when mounting them, and
  • all alarms to be interlinked (wirelessly or by hardwiring) so they all operate simultaneously in the event of a fire.

Both mains and battery-operated alarms are permitted. Mains-powered alarms (with battery backup) must be installed by a qualified electrician. Tamper-proof long-life lithium battery alarms (ie not PP3 type or user-replaceable) are also permitted if installed correctly by any competent person. Alarms should be regularly maintained and tested in accordance with manufacturer’s instructions.

Smoke alarms should conform to BS EN 14604. For more detailed information on smoke alarms, see BS 5839 Part 6.

Heat alarms should conform to BS 5446-2. For more detailed information on heat alarms, see BS 5839 Part 6. In a fire, heat alarms operate later than smoke alarms, so their use should be restricted to rooms in which smoke alarms would cause false alarms (eg: kitchens).

Multi-sensor alarms are fire detectors that detect the presence of fire by monitoring more than one phenomenon of fire (e.g. smoke and heat). These should conform to BS EN 54-29 or BS EN 14604.

Whilst not legally required to do so yet, landlords should consider the addition of a smoke alarm in a home office if a tenant is likely to be spending long periods working from home during the daytime.

Where adding to an existing hardwired system, care should be taken to ensure that all alarms are interlinked, with all alarms sounding when any one device is activated.

The link to the guidance in the Tolerable Standard may be found here.