This content applies to Scotland only.

Housing laws vary between Scotland and England. Get advice relating to England

This page explains who has common law tenancy rights and how these can be supplemented by the terms of your tenancy agreement.

Who has common law rights?

You will have common law tenancy rights if:

• you are a tenant (that is, you have permission to live in the landlord's property and you pay the landlord rent) and
  
• your tenancy agreement is not regulated by any other laws (for example, you are not an assured or short assured tenant, a regulated tenant, or a Scottish secure or short Scottish secure tenant).

For example, you may be a common law tenant if:

• you live with your landlord
• you live in university owned student accommodation
• you are homeless and living in temporary accommodation provided by the council.

Common law tenants don't have as many rights as assured tenants or Scottish secure tenants, but this doesn't mean your landlord can walk all over you.

If I have a statutory tenancy, do I still have common law rights?

If you do have a statutory tenancy (that is, an assured, short assured, regulated, Scottish secure or short Scottish secure tenancy) the rights in your tenancy agreements will override your common law rights.

However, if there are any gaps in your tenancy agreement, the common law can be used to fill them in. For example, if your central heating breaks down but there is nothing in your tenancy agreement concerning repairs, you can refer to the common law and ask your landlord to fix it for you.

Will I have a tenancy agreement?

If you are a common law tenant you will still have a tenancy agreement with your landlord. This can be in writing or it can be a verbal agreement, although it's best to get it in writing if possible.

Your tenancy agreement will state:

• your name and the name of your landlord
• the address of the property you're renting
• how much rent you will pay
• how long you can live in the property for (the term of the lease).

You should also agree on:

• when your rent is due and how you will pay it (for example, by cheque, standing order, etc)
• what your rent includes - for example, does it cover bills (gas, electricity, phone, council tax, etc) or will you need to make a separate arrangement to pay your share?
• responsibility for repairs
• whether you are able to leave before the term of the lease is up, and how much notice you need to give
• other house rules concerning guests, pets, smoking, etc.

How do I make sure my tenancy agreement is fair?

Any rights or responsibilities written into your tenancy agreement should supplement your rights under the common law. However, it's important to check that the terms of your tenancy agreement are fair before you sign it and move in.

Your tenancy agreement should be written in straightforward language that you can easily understand. It shouldn't contain any unfair terms. Examples of unfair terms might be:

• a clause stating that your landlord can change the terms of the tenancy agreement whenever they like and that you will have to accept the new terms
• a clause saying that you have to pay for repairs that are your landlord's responsibility
• a clause saying that your landlord can enter the property whenever they like, without giving you notice.

Unfair terms are not legally binding. You can ask a housing adviser at a Shelter Scotland advice centre or Citizens Advice to check the tenancy agreement for you if you think some of the terms may be unfair.

The Direct Gov website has more information on unfair terms and how to complain about them.