What is a private residential tenancy

The Private Housing (Tenancies) (Scotland) Act 2016 provides the definition of a private residential tenancy.

This defines a private residential tenancy as being the tenancy of a property that is let as a separate dwelling to an individual (or individuals in the case of joint tenants) and where the tenancy is occupied as the tenant’s only or principal home.

In addition, the tenancy must not be excluded from being a private residential tenancy.

This content applies to Scotland

There must be a lease

The common law requirements for the creation of a lease must be satisfied. Please see the page on leases for information on these requirements. The legislation specifically states that a written agreement is not required for a lease to exist. [1]

The tenancy must relate to a separate dwelling

Where the tenant shares living accommodation with the landlord, they cannot be a private residential tenant. Tenancies with resident landlords are specifically excluded. See the page tenancies which cannot be private residential tenancies for more information.

Where the tenant shares some of the accommodation with other people it has been confirmed that the tenancy can be a private residential tenancy. The property must be a separate dwelling, but this includes situations where: [2]

  • the terms of the tenancy entitle the tenant to use property in common with another person (“shared accommodation”), and

  • the let property would be regarded as a separate dwelling were it to include some or all of the shared accommodation.

Where the accommodation is let as a separate dwelling despite the let property including other land, and where the main purpose is to provide the tenant with a home, then the tenancy will be a private residential tenancy. [3]

Where the accommodation is partly used for business, this will not necessarily stop it from being viewed as a separate dwelling. [4]

The tenant must be an individual

Companies cannot hold private residential tenancies. However, it is entirely possible for a joint tenancy to exist, as long as all of the tenants are individuals. [5]

The property is occupied as the tenant's only or principal home

This does not mean that the tenant must live in the accommodation all the time, only that it is their principal home.

In Roxburgh DC v Collins [6] it was held that the correct question to ask is, "did the person concerned have a real, tangible and substantial connection with the housing in question"? The case in question involved a son who lived with his mother, but moved to London to find work. For six years he lived in a lodging house in London, but kept most of his possessions in his old bedroom in his mother's home. He came home and used his room during the Christmas, Easter and summer holidays. He also kept a bank account in his mother's town and did not change his GP. He successfully claimed that his only or principal home was with his mother.

In an English case under equivalent legislation, a tenant who lived for over a year at his girlfriend's house was still held to be occupying his council property as his 'principal home'. [7]

A tenant will still be regarded as occupying their home even if they are temporarily absent, so long as there are physical signs of their presence in the home and they have an intention to return to the property. [8]

Advisers should note that even where the property is no longer a tenant’s principal home the correct process must still be used in order to end the tenancy. The legislation provides this specifically as a ground for eviction and a court order must be sought before the landlord can recover possession. [9]

Joint tenancies

Where a joint tenancy exists, at least one of the joint tenants needs to fulfil the condition of occupying the house as their only or principal home. [10]

Mobile homes

Mobile home occupiers whose agreements began on or after 1 December 2017 may be protected by the Private Housing (Tenancies) (Scotland) Act 2016 if:

Please see the section on mobile homes for more information.

Last updated: 17 February 2022

Footnotes

  • [1]

    s.3 Private Housing (Tenancies) (Scotland) Act 2016

  • [2]

    s.2(4)(a)and(b) Private Housing (Tenancies) (Scotland) Act 2016. See Affleck and Brondson [2020] UT44 

  • [3]

    s.2(3) Private Housing (Tenancies) (Scotland) Act 2016

  • [4]

    Robson and Halliday, 'Residential Tenancies', 2nd Edition, 1998, para 2.28, citing British Land Co. Ltd. v Herbert Silver (Menswear) Ltd. [1958] 1 Q.B. 530

  • [5]

    s.2(5) Private Housing (Tenancies) (Scotland) Act 2016

  • [6]

    Roxburgh DC v Collins [1991] S.C.L.R. 575

  • [7]

    Crawley BC v Sawyer [1988] 86 L.G.R. 629

  • [8]

    Beggs v Kilmarnock and Loudon District Council [1995] S.C.L.R. 435

  • [9]

    schedule 3 Ground 10 Private Housing (Tenancies) (Scotland) Act 2016

  • [10]

    s.2(5) Private Housing (Tenancies) (Scotland) Act 2016