Our lettings service LetLaw received a query from a landlord who asked whether it was necessary for him to have a written tenancy agreement with his tenant.

The short answer is yes! Section 38 of the Housing (Scotland) Act 1988 makes it a legal requirement for a private landlord to provide a tenant with a written tenancy agreement. If the landlord fails to do so, the tenant can apply to court for this documentation to be provided.

A tenancy agreement shouldn't be viewed as a burden for landlords. In fact, it is an essential part of a residential tenancy. If drawn up correctly, it will clearly set out the rights and obligations of both the landlord and tenant, so that both are clear as to what their role is in the landlord/tenant relationship.

It is therefore crucial that a landlord gets the tenancy agreement right. If not, it can create problems later in the tenancy. Some recent issues that have come to light include:-

• The agreement didn't specify that the landlord could recover possession under any of the grounds specified in schedule 5 of the 1988 Act. The landlord therefore was restricted in the route he could use for repossession.
• There was a deposit clause in the tenancy agreement, but it only referred to rent arrears being deducted at the end of the tenancy. The landlord was therefore unable to deduct the costs of any repairs that were required and had to sue the tenant for these.
• The tenant had allowed the condition of the garden to deteriorate. However there was nothing in the tenancy agreement that compelled the tenant to maintain the garden. The landlord was therefore unable to take any action to force the tenant to carry out this work.

If you are unsure about whether your tenancy agreement is up to scratch, please contact our LetLaw team. We'd be happy to help.