Short assuerd tenancy without an AT5

[Farmerdave]

I am new to this site, so this might have already been covered in the past.

 

Because of problems at our accommodation (including having to often go without heating or hot water from Nov till Feb) we decided to move. Now that we have decided to move and handed in our notice the landlord has decided to fix things and will not allow us to end our tenancy agreement.

 

We have a short assured tenancy agreement, but have not signed a AT5 Form. From what I can find out a Short Assured Tenancy Agreement is not valid without a signed AT5 Form. Does that invalidate the contract we signed?

 

We have given 1 month notice, will leave the flat cleaner than what we got it, we have made some improvements (landlord aproved) and we will be letting the landlord have a contact address.

 

Any advice would be great

[Coactum]

You may well know much of what is about to follow but just in case you don’t I thought it wise to give as much info as possible.

 

A Short Assured Tenancy is a special type of tenure available in Scotland since 1988. It should not be confused with the English Assured Shorthold Tenancy because although both began as similar legislation both North and South of the border has effected many changes since these were first incepted. That said most contracts entered into within Scotland will be Short Assured Tenancies, but as you correctly question the absence of an AT 5 negates that.

 

The AT5 is served by the Landlord on the Prospective tenant PRIOR to the creation of a lease. If an AT5 was not served the lease cannot be a Short Assured Tenancy. The Landlord or his agent signs the AT5 it is not signed by the Tenant. I’ll gather some additional info and post in a few minutes.

[Coactum]

The requirements for the creation of a Short Assured Tenancy are contained in Part II of the Housing (Scotland) Act 1988 as amended. In particular, you need to be aware that in terms of section 32(2) of the Housing (Scotland) Act 1988, it is essential that the landlord or agent properly serves a statutory notice on the tenant (form AT5) before the creation of the Short Assured Tenancy.

 

There are certain procedures that must be followed in order to recover possession of a Short Assured Tenancy. It would be down to your landlord should take legal advice if they have any doubts as to how this should be done and not for you educate them so I'll skip past that for now.

 

If you are unsure what the AT5 looks like then the form AT5 and other official forms together with guidance leaflets have been produced by the Scottish Executive and can be found at Scottish Executive.

 

More to follow.....

[Coactum]

Returning for a moment as to whether you can leave prematurely and if we accept that this is indeed a Short Assured Tenancy, then you will be aware that a Landlord must offer the property for at least a 6 months initial term. However, this does not mean that the tenant has to stay 6 months. Leases often contain break clauses permitting the tenant to leave prior to the expiry of 6 months.

 

Before your tenancy began your landlord must have given you a signed notice (Form AT5 ) stating that the tenancy is a Short Assured Tenancy (SAT). If he failed to do so your tenancy is not SAT. This could invalidate the entire lease and afford you rights and privileges beyond what the landlord would have desired. He should therefore be delighted that you want to leave.

 

More to follow....

[Coactum]

Now let me turn to your outstanding repairs.

 

At the creation of your tenancy your landlord should also have provided written information about the effect of the Repairing Standard provisions of the Housing (Scotland) Act 2006 on the tenancy.

 

From 3rd September 2007, private landlords in Scotland have a duty to ensure that rented accommodation meets a basic standard of repair called the "Repairing Standard" under the Housing (Scotland) Act 2006 ("the "Act").

On or before the start of the tenancy landlords have a legal obligation to provide tenants with written information about the effect of the Repairing Standard provisions of the Act on the tenancy. The Repairing Standard letter can be used for this purpose.

 

The Act sets out the criteria that must be met if a property is to comply with the Repairing Standard, including the requirement that the property has satisfactory provision for detecting fires and for giving warning in the event of fire or suspected fire. This requirement should be regarded as met if there is one or more than one functioning smoke alarm installed in the property, the number and position of alarms to be determined by the size and layout of the property.

 

Existing smoke alarms may be mains powered or battery powered. However, a smoke alarm installed from 3 September 2007 onwards must be mains powered. This includes replacement alarms. An alarm should be installed in accordance with the recommendations contained in the British Standard on the design of fire detection installations for dwellings.

 

The landlord will have to ensure that the house meets the Repairing Standard at the start of the tenancy. This means that the landlord or his agent will have to inspect the property before the tenancy starts and tell the tenant if any work has to be done, as well as carrying out the work.

 

Your landlords protracted delay in effecting a repair was a contravention of this act.

[Coactum]

OK I think that should be enough for now. If you need and further clarity I'm sure I can help.

[Coactum]

Sorry FarmerDave, I only just realised that in my zeal to get everything down I had missed an important question. You stated that your heating had not worked November through to February and so I gather that you were in residence in November and as such must be at least 5 months into your tenancy. Giving one months notice that you were leaving surely means that you are departing more or less at the end of 6 months. Or did I miss something?

[Farmerdave]

We went to CAB today at they think that not being biven an AT5 means that we now have an assured tenancy, not as short assured tenancy but the contract its selve remain valid. I seem to remember reading that it is a legal requirment to issue an AT5. It seems mad that the type of contract can just be changed even though it does away with some of our rights.

 

The landlords maintain that the boiler for the heating and hot water was working and all that was wrong was the fact that the trip switch that prevents the bioler overheating was tripping to early.

 

We were not given any information about the Repairing Standard provisions of the Act.

 

There were key features of the flat that resulted in us taking it. We were informed that the secure entry gate was being fixed, but still not fixed, it was a quite place (turns out a water pipe runs through a bedroom wall and the door to the main building slams shut, both of which wake someone up, often at 5am), one of the bedrooms was en-suite but because the shower unit was broken we could nnot use the showere without flooding the bathroom (we were assured this would be fixed and now the landlords are saying that it is not a problem because we had another shower. The fact we could not use it very often because the boiler was nort working correctly is seen as irelevant by the landlord) and the house was well insulated (we had to draft proof the doors and windows after moving in).

 

There is a clause that allows us to end the contract (we have been in less than 6 months) but that must be agreed with by the landlords (we cant contact the landlords because we have only been given the agents address and not being allowed to have the landlords contact details).

[Coactum]

What CAB have said is correct. For a SAT to exist an AT5 needs to be served and without one the contract reverts to being an AT. That is why I said in post 4 that he should be eager to remedy this and allow you to leave.

 

All gas appliances must be regularly tested for Carbon Monoxide Poisoning but this is a seperate issue from your trip switch which comes under Repairing Standards. He needs to keep the property (and the heating system is part of the property) in satisfactory order. So, if a switch needs replacing so be it.

 

He broke the law by not giving you a repairing standards notice.

 

Your landlord must be registered under the Landlord Registration Scheme. Go to https://www.landlordregistrationscotland.gov.uk to verify. If he is not listed then that is another law he has broken!