On 1 December 2017 a new type of tenancy will come into force, called the private residential tenancy, this will replace assured and short assured tenancy agreements for all new tenancies. Find out more

Tenancy agreements

Legally, landlords must provide a written tenancy agreement. This article includes information about unwritten tenancy agreements and unfair terms in tenancy agreements. Tenancy agreements have to include:

  • The name of the landlord and the name of the tenant
  • The address of the property to be rented
  • The amount of rent to pay
  • How long the lease is for (if this isn't specified it will be assumed to be one year).

Agreements should also include:

  • The kind of tenancy being offered (for example, assured or short assured tenancy)
  • Whether the rent covers services (such as gas and electricity) or whether these are extra, and who is responsible for council tax (usually the tenant)
  • When the rent should be paid (this is normally ties in with the date of the month a tenant moved in).
  • How the rent should be paid (for example, by cheque or direct debit)
  • The amount of deposit to be paid and in what circumstances it will not be returned
  • Whose obligation it is to repair and decorate the property
  • Whether any furniture is provided
  • What the conditions are for ending the lease (how much notice a tenant need to give the landlord before moving out, and how much notice a landlord must give a tenant)
  • Whether lodgers are allowed or if tenants can sublet the property
  • Any other terms, for example do tenants need to look after the garden, are tenants allowed to keep pets.

You might find the sample tenancy agreement from City of Edinburgh Council useful. It is for landlords who would like to create an assured or short assured tenancy agreement and tenants who are interested in what should be included in a tenancy agreement.

Unwritten tenancy agreements

If the landlord does not provide a written tenancy agreement it doesn’t mean that an assured tenancy doesn’t exist. Rather, the terms of the contractual assured tenancy will be inferred from the conduct of the parties. This is true even where this conduct is the only evidence that an agreement exists. This means if the parties behave as if there were a contract between them, then the courts will uphold that as a contract. 

If there is no written tenancy agreement, a tenant can apply to the court to have a lease drawn up.

Unfair terms

Tenancy agreements should be written in straightforward language, be easy to understand and shouldn't contain any unfair terms.

An unfair term is one that has not been individually discussed between the landlord and tenant and which causes a significant discrepancy in their rights and responsibilities, so that the tenant is unfavourably affected. An unfair term is not binding on the tenant.

Examples of unfair terms in a tenancy agreement:

  • Making the tenant pay for repairs that are the landlord's responsibility
  • Giving the landlord the absolute right to decide when the terms of the lease have been breached
  • Absolutely prohibiting any assignation (transferring the tenancy to another person) of the tenancy
  • Allowing the landlord to enter the premises without notice
  • Not making it clear that a court order is required before the landlord can take possession of the property.
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