Safeguarding Tenancy Deposits Update Scottish Government 31 May 2011 Many private rented sector tenants are required to pay a deposit to their landlord or the landlord's agent at the start of a tenancy. At the end of the tenancy, the deposit is returned to the tenant. The landlord can legitimately withhold part, or all of the deposit if the tenant has failed to meet their obligations, e.g. where the property requires cleaning or damage to the property has been caused. Concerns that some private landlords unfairly withhold tenants' deposits led to provisions in the Housing (Scotland) Act 2006, which allow Ministers to bring forward regulations to enable approval of mandatory tenancy deposit schemes to safeguard deposits in Scotland. A tenancy deposit scheme is a scheme provided by an independent third party for the purposes of protecting deposits until they are due to be repaid. Once a tenancy deposit scheme is approved and implemented, those landlords affected by the regulations must comply with them. This means that landlords must pay deposits to an approved scheme and provide key information about the tenancy, the deposit, and the scheme which is protecting it, to the tenant. The main objectives in bringing forward regulations for the approval of tenancy deposit schemes are: To tackle the problem of unfairly withheld deposits; Ensure that deposits are safeguarded throughout the duration of the tenancy; Ensure that deposits are returned quickly and fairly, particularly where there is a dispute over the return of the deposit, to tenant and/or landlord. The Tenancy Deposit Schemes (Scotland) Regulations 2011 came into force on 7 March 2011, following approval by Parliament. Scottish Ministers are now able to consider proposals for the operation of tenancy deposit schemes. Any proposal will be assessed against the conditions set out in the regulations. Until suitable scheme proposals are received and approved we can't confirm when a scheme will become operational. But general information on tenancy deposit schemes is available and some frequently-asked questions are answered below: 1
Overview for tenants What is a tenancy deposit scheme? A tenancy deposit scheme is a scheme designed to protect tenant's deposits by placing them with an independent third party. Why introduce tenancy deposit schemes? The main objectives of requiring deposits to be safeguarded by tenancy deposit schemes are: to end the practice of unfairly withholding deposits; to ensure that deposits are safeguarded throughout the duration of the tenancy; and to ensure that deposits are returned quickly and fairly, particularly where there is a dispute over the return of the deposit, or proportion of it, to tenant or landlord. When will a tenancy deposit scheme be available? On 7 March 2011, regulations to provide for tenancy deposit schemes in Scotland became law. This means that Scottish Ministers are now able to consider proposals for the operation of tenancy deposit schemes, which they will assess against the conditions that are set out in the regulations. Once any suitable proposals have been received and approved, details of the schemes and the dates on which they will be available for use will be announced in due course. What will a tenancy deposit scheme mean for you? Tenancy deposits will be protected. Landlords must submit deposits to the administrator of an approved scheme. The deposit will be protected in a designated account until it is due to be repaid. Schemes will be free to tenants. Tenants will not have to pay a charge to their landlord, or to the scheme in order to protect their deposits. Quick repayment of deposits where there is no dispute. Landlords will apply for the return of the deposit when the tenancy ends. The scheme administrator must return the deposit within 5 working days of obtaining agreement by the tenant. Free access to an independent dispute resolution service. Every approved scheme must provide a way for disagreements over the return of deposits to be resolved. This service will be available free of 2
charge as an alternative option to the tenant taking legal action for recovery of a deposit through the courts. Provision of information. Landlords will be required to issue the tenant with key information relating to the tenancy, the deposit and the scheme that safeguards the deposit. Approved schemes will also be required to produce an information leaflet detailing their rules and procedures. Sanctions for non compliance. Tenants will be able to apply to the court for sanctions to be applied against a landlord who fails to protect deposits and/or provide information in accordance with the regulations. Financial penalties, payable to the tenant, will be imposed on landlords who fail to comply. Whose tenancy deposits will be protected? Every landlord who receives a deposit, and who is required to register in the local authority register of landlords, in accordance with the Antisocial Behaviour etc. (Scotland) Act 2004 (landlord registration), must also comply with the Tenancy Deposit Schemes (Scotland) Regulations 2011. This includes landlords of assured and short assured tenancies, university accommodation, as well as various other types of occupancy arrangement. If you are unsure about whether your deposit should be protected you should independent advice. When must deposits be protected? This will vary, depending on when the deposit was received, and when the first scheme becomes operational. All deposits received after a scheme first becomes operational must be submitted to an approved scheme, and information provided to tenants within 30 working days of the start of the tenancy. Landlords already holding deposits before a scheme becomes operational must also protect deposits but will be allowed more time to submit them to an approved scheme. Overview for landlords and letting agents What do the regulations do? The Tenancy Deposit Schemes (Scotland) Regulations 2011 became law on 7 March 2011. They set out the framework for the approval of tenancy deposit schemes. This paves the way for potential scheme providers to develop and submit proposals for the operation of tenancy deposit schemes to Scottish Ministers for consideration. 3
What is a tenancy deposit scheme? A tenancy deposit scheme is a scheme designed to protect tenant's deposits by placing them with an independent third party. Why introduce tenancy deposit schemes? The main objectives of requiring deposits to be safeguarded by tenancy deposit schemes are: to end the practice of unfairly withholding deposits; to ensure that deposits are safeguarded throughout the duration of the tenancy; and to ensure that deposits are returned quickly and fairly, particularly where there is a dispute over the return of the deposit, or proportion of it, to tenant or landlord. What will tenancy deposit schemes look like? Tenancy deposits will be protected by an independent third party. Landlords must submit deposits to the administrator of an approved scheme. The deposit will be protected in a designated account until it is due to be repaid. Schemes will be free to landlords. Tenants will not have to pay a charge to their landlord, or to the scheme in order to protect their deposits. Quick repayment of deposits where there is no dispute. Landlords will apply for the return of the deposit when the tenancy ends. The scheme administrator must return the deposit within 5 working days of obtaining agreement by the tenant. Free access to an independent dispute resolution service. Every approved scheme must provide a way for disagreements over the return of deposits to be resolved. This service will be available as an alternative option to the tenant taking legal action for recovery of a deposit through the court. Provision of information. Landlords will be required to issue the tenant with key information relating to the tenancy, deposit and the scheme that safeguards the deposit. Approved schemes will also be required to produce an information leaflet detailing their rules and procedures. Provision of information to local authorities. Landlords must provide information about their registration status on submission of a deposit to an approved scheme. This information will be referred to the relevant local authority to assist with identification of unregistered landlords and/or properties. 4
Sanctions for non compliance. Tenants will be able to apply to the court for sanctions to be applied against a landlord who fails to protect deposits and/or provide information in accordance with the regulations. Schemes must be self-financing. Scheme proposals must demonstrate a robust business plan that will enable the scheme to operate without the need for reliance on subsidy from the taxpayer. Performance monitoring and review. Approved schemes will be monitored on a regular basis by means of quarterly and annual reports. A set of Key Performance Indicators have been developed to aid assessment of key activities. When will tenancy deposit schemes be implemented? Scottish Ministers are now able to consider proposals for the operation of tenancy deposit schemes, which they will assess against the conditions that are set out in the regulations. Once any suitable proposals have been received and approved, details of the schemes and the dates on which they will be available for use will be announced in due course. What will the regulations mean for landlords? Once a tenancy deposit scheme is approved, any tenancy deposit accepted by a landlord must be deposited with an approved scheme within 30 working days of the commencement of a tenancy. At the same time the landlord must ensure that key information is provided to the tenant, including details about the amount of the deposit and the location of the scheme where it is being held. The deposit will then be kept by the scheme administrator in an account maintained for the purpose of holding tenancy deposits until they are repaid. The landlord must also provide proof of registration with the local authority when the deposit is paid over. These duties relating to tenancy deposit regulations will not apply until an approved scheme is implemented. Which landlords must comply with the regulations? Every landlord who receives a deposit and who is required to register in the local authority register of landlords, in accordance with the Antisocial Behaviour etc. (Scotland) Act 2004 (landlord registration), will need to comply with the Tenancy Deposit Schemes (Scotland) Regulations 2011. This includes landlords of assured and short assured tenancies, university accommodation, as well as various other types of occupancy arrangement. 5
When must deposits be protected? This will vary, depending on when the deposit was received, and when the first scheme becomes operational. All deposits received after a scheme first becomes operational must be submitted to an approved scheme, and information provided to tenants within 30 working days of the start of the tenancy. Landlords already holding deposits before a scheme becomes operational must also protect deposits but will be allowed more time to submit them to an approved scheme. What will the regulations mean for letting agents? The duties in relation to tenancy deposits apply to landlords, as the person requiring the deposit. This does not mean that the landlord cannot employ an agent to act on his behalf to manage a tenancy, as they do now. However, it will be in the interests of landlords who employ a letting agent to act on their behalf to satisfy themselves that the agent is acting in accordance with the regulations i.e. submitting deposits to an approved scheme and providing information to the tenant within the required timescales. The requirements on agents will vary according to the extent to they are involved in the management of a tenancy. Any sanctions imposed as a result of an application by the tenant to a sheriff for non-compliance with the regulations, would apply to the landlord. The landlord may take action against the agent through the court if there has been a breach of contract, as is the case now. Further information Many private rented sector tenants are required to pay a deposit to their landlord or the landlord's agent at the start of a tenancy. At the end of the tenancy, the deposit is returned to the tenant. The landlord can legitimately withhold part, or all of the deposit if the tenant has failed to meet their obligations, e.g. where the property requires cleaning or damage to the property has been caused. Concerns that some private landlords unfairly withhold tenants' deposits led to provisions in the Housing (Scotland) Act 2006, which allow Ministers to bring forward regulations to enable approval of mandatory tenancy deposit schemes to safeguard deposits in Scotland. A tenancy deposit scheme is a scheme provided by an independent third party for the purposes of protecting deposits until they are due to be repaid. Once a tenancy deposit scheme is approved and implemented, those landlords affected by the regulations must comply with them. 6
This means that landlords must pay deposits to an approved scheme and provide key information about the tenancy, the deposit, and the scheme which is protecting it, to the tenant. The main objectives in bringing forward regulations for the approval of tenancy deposit schemes are: To tackle the problem of unfairly withheld deposits; Ensure that deposits are safeguarded throughout the duration of the tenancy; Ensure that deposits are returned quickly and fairly, particularly where there is a dispute over the return of the deposit, to tenant and/or landlord. Frequently asked questions for tenants Questions about the regulations and tenancy deposit schemes have been broken down in to the following topics: 1. General 2. Tenancy deposit schemes 3. Date for complying with the regulations 4. Provision of information 5. Protection of deposits 6. Students 7. Return of deposits 8. Disputes 9. Failure to comply with tenancy deposit regulations 1. GENERAL What is a tenancy deposit? A tenancy deposit is a sum of money which a landlord may require a tenant to pay at the outset of the tenancy, and which will normally be returned to the tenant at the end of the tenancy. The landlord holds the money as security against the tenant not meeting their obligations in connection with a tenancy or occupancy arrangement. In certain circumstances it may be retained by the landlord at the end of the tenancy, for example if it is needed to pay for: damage a tenant may cause to the property cleaning bills if the property has been left in poor condition bills that are left unpaid, for example fuel or telephone bills any unpaid rent. A written guarantee, as often used by deposit guarantee schemes, is not a sum of money and as such is not covered by tenancy deposit regulations. 7
What is a tenancy deposit scheme? A tenancy deposit scheme is a scheme administered by an independent third party for the purposes of holding and protecting tenancy deposits, and resolving disputes about the return of deposit at the end of the tenancy. All schemes in Scotland must be approved by the Scottish Ministers. Will my tenancy deposit be affected? This depends on what type of tenancy you live in. All landlords who are required to register with their local authority must also comply with the tenancy deposit schemes regulations. Landlords of the following types of property are not required to register and so will not have to comply with tenancy deposit regulations: Lets to family members Life rents Houses for holiday use Properties used by religious orders and organisations Accommodation with care Houses subject to control orders Agricultural and crofting tenancies Resident landlords Transitory ownership (executors, heritable creditors and insolvency practitioners) If your tenancy type is not included in the list above, your landlord must deal with your tenancy deposit in accordance with tenancy deposit regulations. The regulations will not apply to tenancies outside Scotland. What will my landlord have to do? A landlord who has received a tenancy deposit and who is not exempt, must pay the deposit to an approved scheme within a specified timescale and ensure that the deposit is held by an approved scheme for the duration of the tenancy. Landlords have to provide evidence of registration with the relevant local authority when the deposit is paid over and provide you with information about the tenancy and the deposit. These duties only apply to landlords where there is an approved tenancy deposit scheme in operation. What if my landlord lives overseas? If a landlord who lives overseas takes a deposit, and is not exempt, he must comply with tenancy deposit regulations. 8
2. TENANCY DEPOSIT SCHEMES When will a tenancy deposit scheme come into effect? This will depend on when proposals are submitted to Scottish Ministers, when suitable schemes are approved and when a scheme is ready to start receiving deposits. Details of any schemes approved and the dates on which they will become available will be announced in due course. How will tenancy deposit schemes work? The tenant will pay the deposit to the landlord or agent, as now. The landlord is responsible for ensuring that the deposit is submitted to an approved scheme, where it will be held in a designated account until the deposit falls to be repaid. Refer to the sections on Deposits, Return of Deposits and Disputes for more detail on how schemes will operate. Will I need to pay anything to my landlord or a scheme so that my deposit is protected? No. How will I know when a scheme has been introduced? The Scottish Government will work with local authorities and other agencies and organisations to ensure that those affected by the proposed regulations are well informed. Those responsible for operating approved schemes must also publicise the schemes across Scotland at the point that they are approved, prior to the scheme becoming operational and for some time thereafter. 3. DATE FOR COMPLYING WITH THE REGULATIONS When will my deposit be protected? This will vary, depending on when the deposit was received, and when the first scheme becomes operational. All deposits received after a scheme first becomes operational must be submitted to an approved scheme, and information provided to tenants within 30 working days of the start of the tenancy. Where the deposit was received before a scheme first becomes operational, one of two timescales will apply: 1. The deposit is received before 7 March 2011 - the landlord must comply within 30 working days of a) the date of renewal of any tenancy which occurs between 3 and 9 months after a scheme first becomes operational, or 9
b) in any other case, the date that falls 9 months after the first operational date. 2. The deposit is received between 7 March 2011 and the date the first scheme becomes operational - the landlord must comply within 30 working days of the date that falls 3 months after the date the first scheme becomes operational. The duty to comply with the regulations will not apply if no approved scheme is in operation. 4. PROVISION OF INFORMATION What information should I receive? The landlord is responsible for ensuring that you are provided with information about where and when the deposit was protected, and the circumstances in which the landlord can make a claim on the deposit at the end of the tenancy. The landlord will also be required to tell you whether he is registered, or has applied to be registered with the local authority. The information must be provided within 30 working days of the beginning of the tenancy. (except where the tenancy began before a tenancy deposit scheme became operational, in which case transitional timescales apply). See the section on Date for complying with the regulations for more details. 5. PROTECTION OF DEPOSITS Who is responsible for submitting deposits to a scheme? The landlord. As noted in Section 1, the regulations place a duty on the landlord to ensure that tenancy deposits are paid to an approved scheme, to provide information to the tenant, and to ensure that deposits are held by an approved scheme throughout the tenancy. What if my landlord uses an agent? A landlord may still use an agent to act on their behalf. However it is ultimately the landlord's responsibility to ensure that the duties in relation to deposits are complied with. How will the scheme protect my deposit? On receipt of a deposit, the scheme administrator will hold the deposit in a designated account, until the deposit is due to be repaid after the end of the tenancy. Scheme administrators must provide adequate protection for deposits, enable individual tenants and deposits to be identified and ensure that money is always available to repay deposits, if required. As part of the process for assessing potential schemes, Scottish Ministers must be satisfied 10
that the proposals relating to the protection and investment of deposits are robust. Will my deposit be safe if my landlord or letting agent goes out of business? Yes - as long as the deposit has been paid to an approved tenancy deposit scheme administrator. How will I know if my deposit is protected by an approved scheme? Once a deposit has been paid to an approved scheme, the scheme administrator will write to you to confirm that the deposit has been received and paid into a designated account. You will also be able to contact the scheme directly for confirmation that the deposit is protected. 6. STUDENTS I am a student. Should my deposit be protected by a tenancy deposit scheme? Unless the landlord is exempt from complying with the regulations, the deposit must be protected with an approved scheme. Will providers of university accommodation be exempt? No. As they are covered by the landlord registration provisions in the 2004 Act, university accommodation providers will not be exempt from the duty to comply with tenancy deposit scheme regulations. I am a student. What happens if someone pays the deposit on my behalf? It does not matter if a third party pays the deposit. Unless the landlord is exempt from complying with tenancy deposit scheme regulations, the deposit will need to be submitted to an approved scheme. Does a holding deposit (that is, a deposit that is taken before the tenant and landlord have entered into an agreement in respect of a tenancy for a specific property) have to be protected by a scheme? No. A deposit for the purposes of tenancy deposit regulations is a sum of money held as security against the tenant not meeting their obligations in connection with a tenancy or occupancy arrangement. This is not the case with a holding deposit. However, if a landlord receives a holding deposit for someone who then becomes his tenant, and the holding deposit becomes the tenancy deposit, the landlord must pay the deposit into an approved scheme. 11
What happens if the property is let to several tenants on one tenancy agreement? The treatment of joint tenants will be determined by the rules of individual scheme providers. 7. RETURN OF DEPOSITS How will I get my deposit back at the end of a tenancy? The landlord must apply to the scheme for repayment of the deposit after the end of the tenancy, giving details about how much of the deposit should be repaid to you. The scheme administrator will write to you, asking you to confirm whether you agree with the landlord's application, or whether you wish to dispute the amount. If you agree with the landlord's application, the scheme administrator will repay the deposit accordingly. How long will it take to get my deposit back? If you agree with the landlord's application, the deposit must be repaid to you within 5 working days. The return of deposits may take longer where the amount is disputed, or either party cannot be contacted, or do not cooperate. What if my landlord does not apply for the deposit? As the tenant, you may also apply to the scheme for repayment of the deposit. If you do apply for the deposit, the scheme administrator will write to the landlord to notify them of the application and amount applied for. If the landlord does not agree to the amount applied for by you, or make an alternative application within 30 working days, the full deposit is repaid to you within 5 working days of the end of the 30 day period. Will interest be returned with the deposit? Interest earned on the deposits held by an approved scheme, will be used first and foremost to pay the running costs of that scheme. The regulations do not prevent scheme administrators from returning interest if they choose to, as long as the conditions in the tenancy deposit regulations relating to the use of excess income are satisfied. How is the deposit paid if I am an overseas student who returns home? This will depend on the processes put in place by individual scheme providers. 8. DISPUTES What is dispute resolution? The dispute resolution process is designed to resolve disagreements over the return of tenancy deposits. 12
What happens if I disagree with the amount of deposit applied for by my landlord? Every approved tenancy deposit scheme will be required to provide access to a dispute resolution service. This means that if you do not agree with the amount of deposit applied for by the landlord at the end of the tenancy, you can ask for the case to be referred to an independent adjudicator. The adjudicator will make a decision about how the deposit should be repaid, based on evidence provided by you and your landlord. The scheme administrator must be satisfied that you have tried to resolve the dispute with your landlord, and that this has failed, before referring a case to dispute resolution. Do I have to agree to dispute resolution? No. You can still opt to go to court, or use another form of redress to recover your deposit. However, the landlord will be required to use the dispute resolution service if you request a referral to dispute resolution. How do I raise a dispute? If you do not agree with the landlord's application for the return of the deposit, you must notify the scheme administrator of the amount which you think should be repaid, and request a referral to the adjudicator. The disputed amount will be held in a designated account until the issue is resolved - any undisputed deposit will be returned to you as soon as possible. The scheme administrator will refer the case to dispute resolution. Can I raise a dispute after I have left the property? The rules of approved tenancy deposit schemes will state the timescale within which you can ask for a referral to dispute resolution. What happens to the deposit if I decide to go to court instead? You will have 30 working days to notify the scheme administrator if you want to use the dispute resolution service. If you tell the scheme that you want to go to court instead, the deposit will be released as per the application by the landlord, which gives details of how much they feel is due to each party. The deposit will be released within 5 working days after the expiry of the 30 working day period. The scheme administrator has no further role to play and it will be for the court to decide how the deposit should be allocated. How much will it cost me to raise a dispute? Use of the dispute resolution service will be free. 13
Will I have to provide evidence to support a dispute? Yes. Both tenants and landlords will be asked to provide evidence to support their claims on the deposit. The types of evidence that will be accepted are not defined in the regulations and will be determined by scheme administrators. How long will the dispute resolution process take? The adjudicator must decide any dispute within 20 working days of receiving the referral. Within five working days of reaching a decision, the adjudicator must write to the scheme administrator, the tenant and landlord, setting out the detail of the decision. Can the adjudicator's decision be challenged? Yes. The landlord or tenant will have 10 working days from the date the decision is notified, to request a review of that decision. A review can only be accepted if the adjudicator has erred in law, and or fact, for example if the adjudicator has ignored evidence that was provided to support the claim. A review will not be accepted simply on the basis that the tenant or landlord does not like the outcome. A decision of the adjudicator following a review is final. How long does it take to return the deposit once the adjudication has been made? The deposit must be returned within 5 working days of the end of the 10 working days allowed for a request for review of the adjudicator's decision. Where a review is undertaken, the deposit must be returned by the scheme administrator within 5 working days of notification of the review decision. 9. FAILURE TO COMPLY WITH TENANCY DEPOSIT REGULATIONS What happens if my landlord fails to submit a deposit to an approved scheme? If a deposit is not paid to an approved scheme within the required timescale, you may apply to the court for sanctions against the landlord. If the sheriff is satisfied that the landlord has failed to comply with the regulations, they must order the landlord to pay you up to three times the amount of the deposit and in addition may order the landlord to submit the deposit to an approved scheme. 14
The sheriff will have discretion to take the individual circumstances of each application into account when deciding what amount of financial penalty should apply. What happens if my landlord fails to provide me with the required information? The same process applies as for the failure to submit a deposit to an approved scheme. If the sheriff is satisfied that the landlord has failed to comply, the sheriff must order the landlord to pay you up to three times the amount of the deposit and in addition may order the landlord to provide the information. The sheriff will be able to decide on the amount of the financial penalty to apply to the landlord. What happens if I move out of my home before realising that the landlord has not complied with the regulations? You will have up to three months after the tenancy has ended to make an application to the court for sanctions against the landlord. If you have any further queries about tenancy deposits contact the Scottish Government on 0131 244 7927. 15