In March 2011, the Scottish Parliament passed regulations to introduce tenancy deposit protection, which will change the way in which payments are dealt with.

Just prior to Easter 2012, the Scottish Government confirmed that the Minister for Housing and Transport has approved the scheme proposed by the Letting Protection Scotland.

This will have an operational start date of July 2, 2012, which will hopefully coincide with the start of Safedeposits Scotland and Mydeposits Scotland. These two additional schemes are currently in the process of public and government scrutiny and, assuming approval is granted, all three will start on the same day.

The legal duties on landlords, who receive a deposit in connection with a relevant tenancy, will also be triggered from this date. Landlords have legal duties to pay deposits to an approved tenancy deposit scheme and to provide the tenant with key information about the tenancy and deposit.

To allow landlords and letting agents time to adjust to the new way of dealing with tenancy deposits, the Tenancy Deposit Schemes (Scotland) Regulations 2011 has set out the transitional arrangements for when landlords must comply.

Here are 10 top tips to help you familiarise with this new regime.

1. Understand the regulations
Ensure the regulations are fully understood. The deposit is the tenant’s money so in the event that a landlord can’t prove their case, the default path is for the money be returned to the tenant.
2. Inventory and schedule of condition documents are key Without these key documents, it may not be possible for a landlord to prove that the property has deteriorated during the tenancy and if the deterioration is the tenants’ responsibility. Ideally photographs will accompany the check-in and check-out documents, signed by the tenant if possible.

3. Be able to access tenancy deposits
There is a strict time limit from the start of the scheme to transfer existing deposits. New deposits taken after the launch have to be transferred within 30 working days. There is a legal penalty of up to three times the deposit value if they are not transferred on time.

4. Review your tenancy agreement
The tenancy agreement should be updated to comply with scheme rules. Tenancy obligations need to be made clear so that any breaches can be remedied through a deposit deduction.

5. End of tenancy procedures
As the scheme will now hold the deposit there won’t be any funds to help with any necessary end of tenancy repairs. Letting Agents may need to agree with their landlords that they can hold back some rent monies or extending credit terms with contractors. The longer it takes to arrange repairs, the longer the property remains empty.

6. Review terms of business
Letting Agents will need to review the terms of business and the fees to be charged for handling the deposit registration and recovery process as well as dealing with end of tenancy repairs. New Regulations In March 2011, the Scottish Parliament passed regulations to introduce tenancy deposit protection, which will change the way in which payments are dealt with.

7. Audit trails
An audit trail is necessary in case of any dispute. Review filing and email procedures to ensure evidence can be quickly provided to deal with any dispute.

8. Contractor invoicing
In a dispute, invoices and estimates from contractors need to be detailed. It may need to be communicated to contractors the level of detail required.

9. Educate
Staff, landlords, agents and tenants need to be briefed on the changes of these new regulations.

10. Tenancy Deposit Protection options
Landlords have the option to do this new work themselves or enlist the services of an agent to do this for them. Call us today on 0845 673 7270 or email lettings@ross-liddell.com, our ARLA qualified staff would be more than happy to discuss or arrange an appointment at your convenience.

The 31st of August 2011 sees the implementation of the first parts of the Private Rented Housing (Scotland) Act 2011 (the Act) as well as certain aspects of the Housing (Scotland) Act 2006 (the 2006 Act) relating to HMO licensing (Sections 124 to 166 and various schedules.

The soon-to-be implemented sections are listed in the schedule to the Private Rented Housing (Scotland) Act 2011 (Commencement No.1 and Saving Provision) Order 2011 and contrary to briefing notes circulated recently, does not include the obligation to state landlord registration numbers in property advertisements. That requirement is contained in Section 6 of the Act and as things stand there is no expectation in the Scottish Government that this section will be implemented imminently.

Indeed some of the parts of the Act are only being implemented to the extent of allowing the Scottish Ministers to issue further regulations and orders and have no direct affect until such further regulations and orders are made and are therefore not included in this article in any detail.

These relate to the provisions for Tenant Information Pack (Section 33) and for fees to be charged by local authorities for notices intimating the appointment of agents to manage properties (Section 4(a)).

Additionally, there are some changes (Sections 36 and 37) relating to the relaxation of the rules for Future Long Leases and redemption of certain standard securities under the Land Tenure Reform (Scotland) Act 1974, which are of little relevance to most Agents and are therefore beyond the scope of this article.

I have also left out some technical amendments to the HMO licensing regime in the 2006 Act (Sections 13(1),(3) and (6), 15 and 16) as well as minor amendments to the Antisocial Behaviour Etc (Scotland Act 1984 (Section 10) and specific advice should be sought in relation to those aspects.

Fit and Proper Person: criminal record certificate - Section 2

In assessing whether a landlord is a 'Fit and Proper Person' to be registered as a private landlord, the relevant local authority will have the power to require an applicant for such a licence to produce a Criminal Record Certificate. This can only be requested if the local authority has reasonable grounds to suspect that information in an application for registration is or has become inaccurate. For the avoidance of any doubt, Section 1 of the Act which provides for additional 'considerations' when determining the 'Fit and Proper' test is not one of the sections implemented by the above Order. Again something that has been wrongly suggested by certain organisations circulating information about the Order.

Appointment of Agents (Offence) - Section 4(b)

This Section introduces a criminal offence should a registered landlord fail without a reasonable excuse to comply with their obligation under the Anti-Social Behaviour etc. (Scotland) Act 2004 (Section 88) to notify local authorities of the appointment of an Agent to manage a property.
The offence covers not only a total failure to notify the relevant local authority, but also where a notification contains material information which is false.

Punishment is subject to a maximum fine of £1,000 (currently), but as with all such matters there is the risk that conviction of such an offence could have a knock on effect on a landlord's future ability to pass the "Fit and Proper" test.

Penalty for Acting as an Unregistered Landlord etc - Section 7

This simply increases the maximum fine for acting as an unregistered landlord from £5,000 to £50,000, whether that will have any practical affect or not remains to be seen, but presumably it is meant to have some deterrent capacity.

Penalty for certain offences in relation to HMOs - Section 14

Provides for an increase in the fine for operating unlicensed HMOs from £20,000 to £50,000.

Notices required for Termination of a Short Assured Tenancy - Section 34

This Section seeks to clarify a confusion that really should not have existed and confirms, what most knew already, that there is no requirement to serve an AT6 when seeking to recover possession of a property let under a Short Assured Tenancy under Section 33 of the Housing (Scotland) Act 1988.

All in all the above changes are not too extensive when in context of the Act itself.

Indeed one of the more vexing and important aspects for Agents in relation to Premiums (section 32) has not been implemented by this Order.

Not that the proposed changes to the definition contained in the Rent (Scotland) Act 1984 really affect the position greatly in any event as they simply add more description to what a Premium could be and leave the underlying test of conditionality unchanged.

The understanding is that, this aspect will not be implemented until the regulations provided for in the Act are available to allow certain specified charges to be made for the grant, renewal or continuation of Protected Tenancies (including all Assured Tenancies).

Author - Rory Cowan, a partner at Kerr Stirling, who provide the legal helpline service for residential lettings in Scotland

Energy performance certificates were introduced on 4 January 2009 under the EU Energy Performance of Buildings Directive (EPBD), which aims to improve the energy performance of new and existing buildings.

An EPC provides an energy rating for your property and makes simple, cost-effective recommendations for ways in which its efficiency could be improved, to help save energy, reduce bills and cut carbon dioxide emissions. The certificate is valid for ten years.

If you're letting out a property to new tenants, you must be able to produce a valid EPC free of charge to anyone interested in renting it. If you already have tenants living in your property, you won't need an EPC until you wish to take on new tenants.

As of 1st April 2009, under Section 11 of the Homelessness etc (Scotland) Act 2003, letting agents, landlords and mortgage lenders must advise their local Council when instigating court proceedings to evict a tenant, or reposes a property from the homeowner.

The function this legislation is to give the council ample knowledge that an individual, or household, are at risk of becoming homeless. Once the Council they may intervene to see if the eviction can be halted through mediation or other means or they may attempt to find alternative housing for the tenant/homeowner.

The Council must be advised only when the landlord/lender seek a court date for eviction, not just when Notice to Quit is issued.