Short assured or private residential tenancy

From 1st December 2017 no new short assured tenancies can be created. New private tenancies created after this date are likely to be private residential tenancies. However, short assured tenancies created prior to this date may continue to exist.

This section looks at situations where a short assured tenancy has reached the end of the original fixed term and gives details of whether the tenancy continues or a new private residential tenancy is created.

This content applies to Scotland

Lease is silent

Short assured tenancies must have a fixed term of at least six months. Where the lease is silent on what happens at the end of this period the contract repeats under the same terms for the same duration (up to a maximum of one year if the original lease was for longer than this) until either party gives notice to quit. This process is known as ‘tacit relocation.’ See the section on the lease automatically repeats for more information on this. Short assured tenancies can continue via tacit relocation until ended by either party and will not become a private residential tenancy unless both parties agree to this in writing.

Lease continues on a fixed term basis

Where the lease states that the lease continues after the initial fixed term, for example that it continues on a month to month basis, this is considered to be a new ‘contractual tenancy’ however this tenancy can continue indefinitely and does not become a private residential tenancy unless both parties agree to this in writing.

Landlord and tenant sign new tenancy agreement

Where there has been a short assured tenancy created prior to 1st December 2017 and the landlord and tenant sign a new agreement, this is a new ‘contractual tenancy’. This will continue to be a short assured tenancy so long as the premises are ‘the same or substantially the same’ and the landlord and tenant (or joint tenants) are the same.  [1]

Landlord and tenant are the same but change to property

In order for the short assured tenancy to continue the legislation requires that the premises be ‘the same or substantially the same’. [2] So if the landlord and tenant are the same but it is a completely different property any new agreement will be a private residential tenancy.  

New tenancy agreement but changes to landlord or tenant

Where the landlord has changed, for example where the property has been bought by a new owner, the new owner takes on all the obligations of the lease. Any current short assured tenancy will continue. However if a new agreement is signed then this new contractual agreement will be a private residential tenancy.

In the same manner, where there are changes to any of the tenants named in the original agreement any new contractual agreement will be a private residential tenancy. So for example, where there have been two joint tenants and one tenant leaves, a new joint tenant entering the agreement would mean the new agreement is a private residential tenancy.

It maybe possible for a landlord to 'assign' the original tenancy to a new tenant but this could be complex. Where this situation arises paperwork needs to be looked at thoroughly. See the section on assignation for further discussion on this.

Dispute

A tenant and landlord in dispute about whether their agreement is a short assured tenancy or a private residential tenancy can apply to the First Tier Tribunal to seek a decision. [3]

Changing from short assured to private residential tenancy by agreement

There is an option for a landlord and tenant to agree to convert an existing assured or short assured tenancy into a private residential tenancy if both parties choose to do so. [4]

Last updated: 31 January 2018

Footnotes

  • [1]

    reg.6(c) Private Housing (Tenancies) (Scotland) Act 2016 (Commencement No. 3, Amendment, Saving Provision and Revocation) Regulations 2017 SSI 2017/346

  • [2]

    s.32(3)(b) Housing Scotland Act 1988 as amended by reg.6 Private Housing (Tenancies) (Scotland) Act 2016 (Commencement No. 3, Amendment, Saving Provision and Revocation) Regulations 2017 SSI 2017/346

  • [3]

    s.70 First Tier Tribunal for Scotland Housing and Property Chamber (Procedure) Regulations 2017 SSI 2017/328

  • [4]

    s.46A Housing Scotland Act 1988 as amended by sch. 5 para. 3 Private Housing (Tenancies) (Scotland) Act 2016