Letting agents

Where a letting agent fails to comply with the Code of Practice an application can be made to the tribunal to take enforcement action. [1]

The applicant must first notify their letting agent in writing of the reasons why they consider that they have failed to comply with the Code. A template letter is available on the Housing and Property Chamber website for this purpose.

After the notification has been sent, if this has not resolved the issue, an application can then be made to the tribunal. The tribunal may reject an application if it is not satisfied that the letting agent has been given a reasonable time in which to rectify the breach.

The application should be made on Form J which can be downloaded from the Housing and Property Chamber website or requested from them directly. The following must be included with the application: [2]

• a copy of the notification sent to the letting agent informing them of the breach of the Code in question

• proof of service of this notification

• copies of any correspondence which they have sent and received from the letting agent regarding the alleged breach of the Code, including the letting agent’s response to the notification of the breach of the Code;

• An inventory listing the documents should be included if numerous documents are being produced

• A statement setting out the reasons for considering that the letting agent has failed to comply with the Code

• Information as to any loss suffered by the applicant as a result of the failure to comply

When noting which part(s) of the Code of Practice have been breached it may be useful to quote the relevant part of the legilsation and the specific part of the Code. For example, if the letting agent charged an unlawful fee you may write:

sch.1 para.16 Letting Agent Code of Practice (Scotland) Regulations 2016 states ,'You must conduct your business in a way that complies with all relevant legislation'. In this instance the letting agent has failed to comply with ss.82-90 Rent (Scotland) Act 1984 as they charged an unlawful premium by taking a £150 holding fee.

See the pages on Tribunal applications for more information the procedure.

If the tribunal decide that the letting agent has failed to comply with the Code it must issue an enforcement order setting out the steps the letting agent must take to rectify the matter. [3] An enforcement order may also require the letting agent to pay compensation.

If the tribunal decides the letting agent has failed to comply with the enforcement order it must notify Scottish Ministers. Failure to comply with an order will be taken into account in considering whether a letting agent should be removed from the register. From 2nd October 2018 it will be a criminal offence for a person who has not applied to the register to carry out letting agency work. [4]