Rent in advance - Private rented sector

Many landlords will ask for rent in advance when granting, renewing or continuing a lease. This section looks at when it is legal for a landlord to charge rent in advance.

This content applies to Scotland

Rent in advance

Rent may be paid in advance, subject to the following rules: [1]

  • The landlord cannot demand rent before the start of the rental period for which it is due.

  • The landlord cannot demand more than six months' rent in advance.

A landlord who breaks these rules may be committing a criminal offence, [2] and the tenant can report them to the police.

Rental period

The ‘rental period’ is the period that rent is charged against in the lease. [3] The term refers to the date rent has to be paid as well as the frequency. The rental period in the lease is not to be confused with its duration, ie the period between the start and the end date.

Most leases will request that rent be paid either monthly or weekly in advance on the anniversary of the start date of the lease. So, in effect, it is lawful for a landlord to charge a month/week's rent in advance at the start of a tenancy, but only once the lease has commenced. The protection is designed to prevent landlords asking for large sums of rent money up front at the start of a lease when in the lease they are asking for monthly or weekly payment. 

If a lease stated that the rental period was for 'six months in advance to be paid on the first date of the tenancy', then such a term may be lawful. However, if the lease requests that rent is paid 'monthly in advance' on a given date and the landlord nevertheless demands six months rent up front, then they may be acting unlawfully. If the lease states that more than six months rent in advance is required this may also be unlawful.

Enforcing the law

A tenant whose landlord is asking for more rent in advance than the law allows may have few options in practice. The landlord may simply say that the tenant does not have to take the tenancy if they do not want to. Where the landlord is asking for rent in advance as a condition of continuing or renewing a lease, short assured tenants may be at risk of the landlord raising eviction proceedings.

Tenants who have already made a payment of rent in advance could raise action at the First Tier Tribunal to recover the money. Short assured tenants should keep in mind however, that this comes with the risk of the landlord ending their tenancy.

Tenants could also withhold rent up to the amount of the excess rent in advance (making sure they notify the landlord and keep the money in a separate account). However, this can be a risky option. If the tenant has a short assured tenancy there is a risk of the landlord taking eviction action. Assured and private residential tenants may also be at risk from eviction if rent arrears action is raised.

Tenants considering either  action should seek specialist advice.

Is the requirement 'imposed' upon the tenant

The Upper Tribunal have held, that where a tenant themselves requested that they pay rent in advance in excess of the six month maximum, they could not then argue that the requirement was 'imposed' upon them. The Tribunal also held that although the lease in this case contained a clause requiring twelve months rent be paid at the start of the tenancy, the evidence was that this had been inserted into the lease at the tenant's request and therefore was not unlawful.  [4]

Last updated: 3 February 2020

Footnotes

  • [1]

    s.89(1)(a) Rent (Scotland) Act 1984; s.27 Housing (Scotland) Act 1988

  • [2]

    s.89(3) Rent (Scotland) Act 1984; s.27 Housing (Scotland) Act 1988

  • [3]

    s.90(1) Rent (Scotland) Act 1984; s.27 Housing (Scotland) Act 1988

  • [4]

    Malloch and Bernisdale Homes Limited [2020] UT 6 UTS/AP/19/0015