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The fit and proper person test

If you rent from a private landlord or letting agency, they will have to pass a 'fit and proper person' test before they can be registered with the council, to show that they are suitable to be a landlord. Read this page to find out what the test is and how the council will apply it.

What is the 'fit and proper person' test?

Before the fit and proper person test was introduced, there was no way of making sure that private landlords were good landlords. The new fit and proper person test means that private landlords have to meet a certain standard before they can legally rent out property. The test is designed to weed any bad landlords out of the system and to improve the standards in the private rented sector generally. This should give you, as a tenant, extra protection from bad landlords.

How does the 'fit and proper person' test work?

When the council receives an application for registration from a landlord, it will have to decide whether or not they are a fit and proper person to let out property. This means that the council will look at their application for registration and decide whether or not they're likely to be a good landlord. However, most landlords pass the test automatically, unless the council is alerted to any problems.

What will the council look at?

The council has to take certain things into account when deciding whether or not a landlord is a fit and proper person to let out property:

  • Information showing that the landlord has committed fraud, or violent or drug related offences.
  • Evidence of discrimination in any business activity.
  • Information showing that they have broken any other laws in relation to housing.
  • Information showing that they are a bad landlord, or that they have been a bad landlord in the past.
  • Antisocial behaviour problems in any properties the landlord rents out or is responsible for.
  • If the landlord has an agreement with a letting agent (or anyone else who's acting on their behalf in letting the property), that the terms of that agreement are adequate.
  • Anything else which is relevant.

A criminal conviction doesn't necessarily mean that a landlord won't pass the test. The council will have to look at every case individually and weigh up all the circumstances when making a decision. For example, the council will have to think about:

  • what the conviction was for
  • how long ago it was
  • whether or not it will affect the person's ability to be a good landlord
  • the risk of the same thing happening again and whether that would affect the person's duties as a landlord.

The council may decide to speak to the landlord when making this decision. It can also gather other evidence if necessary. It won't be straightforward in every case but it's up to the council to make the decision at the end of the day.

How is the decision made?

First of all, the council will look at the application form submitted by the landlord. It will use the information in the form to decide whether or not they pass the test.

Automatic registration

If there is nothing on the application form to suggest that the landlord shouldn't be registered (see 'what will the council look at?' above) and the council has no other reason to carry out further investigations, it can accept the application. If this happens, it means that the landlord will pass the test automatically and will be fully registered (this is called 'the presumption of approval'). However, if it comes to light later on that there is a problem, the council can take action (see 'can the council take a landlord off the register' below).

Further investigations

If there is anything on the application form that the council has to look into (see 'what will the council look at' above), or if the council has other information that needs to be looked at, it will investigate further. The council may also investigate further in a sample of cases where it has no reason to doubt the landlord's suitability, as a check that the registration arrangements are working properly. Where the council carries out investigations, it will have to decide how strong, reliable and important that information is.

If the council is investigating matters further, that doesn't necessarily mean that the landlord will fail the fit and proper person test. Further investigations may include speaking to you, other tenants and the landlord, or obtaining references about the landlord. The council may need more information or it may simply need to clarify some things. In more serious cases, or where the council suspects criminal activity, the police may get involved.

As this is still a fairly new system, you'll have to wait and see how it's going to work in your area. However, it's likely that further investigations will only be carried out when it's really necessary and when the council think it's appropriate to do so. The Scottish Government predicts that registration will be automatic in most cases so further investigations won't be needed for the majority of landlords.

Weighing up the evidence

When the council has completed its investigations (in cases where this is necessary), it then has to weigh up all the evidence it has gathered and decide whether or not the landlord passes the fit and proper person test.

There are no hard and fast rules about how they make this decision. The Scottish Government has produced guidance for local authorities and this encourages councils to have specific members of staff who are able to make decisions in these cases. However, each case will be different. If you have any questions, it's best to contact your local council to find out how the system is working in your area.

What if a landlord fails the test?

If the council decides that a landlord or letting agency is not suitable to let out property, their application for registration will be refused. This means that the landlord or agency cannot lawfully rent out property to you or anyone else. Renting out property without being registered with the council is a criminal offence and landlords can be fined up to £50,000 if found guilty. As well as being a criminal offence, the council can impose a rent penalty notice (RPN) on the landlord if they are renting without being registered.

If the council decides that your landlord is not a fit and proper person to be registered, they can appeal against this. Contact your local council to find out what the appeal procedure is in your area.

If the council have refused the owner's application for registration, don't panic! Your landlord can't evict you, or throw you out, simply because their application for registration has been refused. Have a look at our page about landlord registration for more information on this.

Can the council take a landlord off the register?

The council will be able to take away a landlord's registration status if it obtains new information or if circumstances change so that the landlord is no longer a fit and proper person to rent out property.

If this happens, the council has to inform you, and any other tenants, and give you information on your housing rights.

What if the landlord didn't tell the truth?

If the council finds out that the landlord lied on the application form or deliberately didn't reveal something that may have affected the decision, the council can take them off the register. The landlord can also be prosecuted. If convicted, the landlord will be guilty of a criminal offence and this will give them a criminal record.

If the owner of the property you live in has been taken off the register, the council has to tell you about this (see 'can the council take a landlord off the register' above).

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The important points

  • The fit and proper person test means that private landlords have to meet a certain standard before they can legally rent out property.
  • If the council decides that a landlord or letting agency is not suitable to let out property, their application for registration will be refused.
  • If the council have refused the owner's application for registration, don't panic! Your landlord can't just evict you.
  • If the council decides that your landlord is not a fit and proper person to be registered, they can appeal against this.

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