UK Landlord Forum / Life

I am really really hoping someone can help me on here!

I rented out a property to a friend to our flat in edninbugh in 2011. To be clear from the outset, the agreement does not state the period of the tennacy, the box was left blank so I have gathered this means our tenant is in a assured tennancy agreement. We now wish to sell the flat but under this old agreement that is not grounds for eviction. We have served a notice to quit, and now have served at AT2 form to increase the rent on the property. We have given 1 months notice for the rent increase.

The person renting out the flat has now had some legal advise and we have receieved a letter stating that our rent increase is not lawful. they state this is because the AT2 form clearly states "where the assured tennancy is for 6 months or more then a period of notice of six months if required before an increase in rent can take place"

My question is is this advise correct? if there was no term specificed on the agreeement originally then what is the current period of the tennacy? is it now 6 months? 12 months or rolling month by month? Also now that we have served a notice to quit does this not change the tennacy to a "statutory assured tennacy" and again mean we now are on a rolling month agreement?

in summary we need to clarify if the AT2 still stands and the rent increase is due by the start of next month or are we wrong and we should have given 6 months notice before we could increased the rent?

any help would be much appreciated!!

Did you serve an AT5?

Hi

No we didn't.. so it's an assured tenancy not short assured.

I'll readily admit Scottish Landlord and Tenant Law is not my forte.  I only looked at it as in some respects it is now "better" than English law.

But given the facts you have provided I can't see why the Tenancy is anything more than a monthly Assured Tenancy.

To me it seems the AT2 is correct but I will say it's very rare for an agreement of this period to not have a fixed term specified.

Perhaps best to enquire why the responder believes the Tenancy is a six month Tenancy (or are they just reading what is on the AT2?)

Hi

They have been told this by a free advice team. Because there was no period or term defined in the agreement it is assumed/implied that the term is 6-12 months.

My argument is even if this was the case that was 7 years ago and after that implied term nothing was renewed .. therefore in my eyes this is now simply a periodic tenancy rolling month by month.. and that being the case I only have to give one month notice for rent increase and not 6!!

Bob, sorry this one is beyond me.  I even went back to my law school library to see if I could get hold of a Scottish Law book but couldn't find one. Sorry.

I do think though, that as this is definitely not an AST, then the initial term could be one month (not 6). However it is possible (I can't see how) that a term of 6 months could be implied (but this is definitely not an AST) so I am dubious.
It's important as it is the original Tenancy term that determines AT2 notice period.

Sorry can't be of much help.  I can't even really advise as to who you could ask other than obviously a Scottish Lawyer.

Really appreciate your help on this

I think from my point of view its more about this letter from the advice center that states that "because the term of the tennancy is 12 months then 6 months notice for rent increase needs to be given"

yes  it does state this fact very cearly on the AT2 form - but to me its about the term of the tenancy as it stands RIGHT NOW. There was no term specified in the agreement and the box was left blank, so I believe reading around this means that a 12 month tenancy is implied or assumed in this case.

that I can get on board with - but to me that was what the term WAS - after that 12 months (which was 8 years ago) surly the tenancy then automitically terms into a monthly (periodic) tennancy? and if this is the case the current term of the tennancy is not 12 months but 1 month therefore only one month notice is required for a rent increase?

if I can confirm this I can go back to my tenant, tell them the advice they were given was wrong and then clarify that the increase is valid.

last point - the last page of the agreement even states "if you do not have a tenancy agreement or the tenancy agreements does not state when the tenancy will end, under the law you have a right to a tenancy that will run for 6 months initially and after this period will become a periodic tenancy (eg month to month)" - this is in black and white so surly this is proof enough?

This is from the guidance notes for AT2 (and I reiterate my knowledge is limited). I have bolded the words myself.

""
Giving The Right Amount Of Notice
4. You should note that you must give your tenant the correct amount of notice of a rent increase. If the assured tenancy is for 6 months or more, 6 months must be given. If the tenancy is for less than 6 months the notice period must be the same length of time as the original tenancy, but the tenancy cannot be less than one month.""

It refers to the "original tenancy" hence while I understand for an AST that 6 months could be implied I cannot conclusively state the same for an Assured Tenancy which is why I can't help (in Scotland).

Actually I've just reread your latest post.

Looking at the last para you shared it seems the agreement IS FOR 6 MONTHS ?
You say you did not specify the fixed term so I would infer the last para operates to define the Fixed Term.

Then per the AT2 notes it is that term that defines the notice period.

yes I think you are right - and it probably is in that case going to be six months

can i ask where you got the information for the part that states "the notice period must be the same length of time as the original tenancy, but the tenancy cannot be less than one month."

i would like to locate that and send to my solicitor

thanks again

Am on the train home but will send later this evening.

Happy to help - my first Scottish one - feeling so MoneySupermarket right now.... cue music.

Although sorry it's not the answer you want.

Bob below is the link to the same doc I have but its the internet version "Assured Tenancies Housing (Scotland) Act 1988: Guidance for Completion of Assured Tenancy (AT) Forms"

See Page 7
NOTE FOR LANDLORDS – TO BE READ WITH FORM AT2
section 4

Also glad you are using a Scottish solicitor- I am not familiar enough with Scottish Law and so much relieved you are using a proper source of advice. 

https://www.gov.scot/binaries/content/documents/govscot/publications/form/2017/11/rent-regulation-assured-tenancies-forms/documents/e5f99c98-100b-4719-8283-bcafb2906955/e5f99c98-100b-4719-8283-bcafb2906955/govscot%3Adocument