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  • Legal FAQs

    Self contained flat - rental type

    Good afternoon folks,

    Got a bit of a tricky situation that I'm hoping someone can help with please:

    Basically my brother and his fiancée bought a two storey flat together in Scotland last year.

    The first floor and the second floor each have their own separate bathroom and kitchen (we believe it was used as an HMO in the past).

    They intend to reside on the first floor and a builder has recently installed a new door inside the first floor vestibule in order to provide separate access via the stairwell to the upper floor/flat and they intend to rent out this floor.

    The flat as a whole has a single boiler, energy supply, council tax etc so their plan is simply to rent this upper floor at a fixed monthly rate which will include all bills (rent, gas, electric, council tax, wi-fi etc).

    The problem is we're not sure what kind of rental agreement is actually required, be it a: private landlord, HMO, common law, resident landlord agreement etc.

    Since the upper floor is not officially a separate flat, I assume a standard Scottish private resident tenancy isn't suitable? Since they both have separate bathrooms and kitchens I assume it also can't be classed as resident landlord (which is only if bathroom/kitchen is shared)? Which just leaves HMO and common law?

    Would greatly appreciate any advice anyone might have in regards to this as obviously they want to do it properly and comply with all legalisation.

    My brother will of course be having the gas safety and electric checks done prior to renting it for whoever will be staying in the upper floor.

    Many thanks in advance guys

    ****

    Some info about the flat:

    Description:

    Double upper flat within a two storey and attic level linked detached building with shop premises on ground floor

    Accommodation:

    FIRST FLOOR: Vestibule, Hall, Inner Hall, Lounge, Kitchen, Bedroom, Dining Room with Bedroom 2 off, Shower Room

    SECOND FLOOR (accessed via stairway inside vestibule): Hall, Three Bedrooms, Kitchen, Bathroom

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    I think Scottish renting regulations are different from England and Wales so be very careful taking advise from here unless people have specific experience in renting in Scotland.

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    Yes, tenancy regulations are different. This link to shelter's site may be useful:

    https://scotland.shelter.org.uk/get_advi..._landlords

    However, I can't find any exception to the Rent A Room scheme for Scotland so the tax benefits may still apply:

    https://www.gov.uk/government/publicatio...-landlords

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    Thanks for this, looking at the shelter scotland site, I see there is a "common law tenancy" option available which would appear to get around the fact that the landlord and lodger do not have shared access to rooms in this particular case, which appears to be a requirement of the "resident landlord tenancy" so perhaps this common law tenancy is the way forward? 

    I must admit I've never heard of a common law tenancy so I'll need to research this further and also try find a solid template agreement for use in Scotland - there is an example template on the same shelter Scotland site but I'm not sure how solid it is or if it's up to standard/regulation with all the Scottish reg changes that have been implemented in the last few years so if anyone could advise any further on common law then I'd happily hear it : )

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    They sure are, it's a pain at times when having to do research such as this in order to differentiate between Scotland and England regs but duly noted, I did make a point of highlighting the property is based in Scotland for double measure

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