Monitoring of Legal Services – Property, Construction and Planning –
Landlord and Tenant Issues (non-contentious)
The Scottish Legal Aid Board (SLAB) was given a role in monitoring the availability and
accessibility of legal services in the Legal Services (Scotland) Act 2010. Our role is to
ascertain whether people or organisations are experiencing systemic problems getting the
help they need from solicitors, whether paid for by legal aid or on a private basis.
This paper sets out data collected in relation to non-contentious landlord and tenant issues,
and SLAB’s initial assessment for the purposes of its monitoring duty.
Feedback will help us to develop our overall understanding of possible problems with access
to solicitors for this area.
Overall context for landlord and tenant issues in Scotland
Tenancy law is a wide-ranging area which applies to housing associations, private
landlords, letting agents and local authorities throughout Scotland. It spans landlords
with single properties to local authorities or large housing associations with
significant housing stock.
There are various non-contentious areas in which landlords in particular may require
legal advice regarding the rights and obligations which form part of leases and other
contracts. The relevant areas might include (amongst others) advice on landlord
registration; the type of lease to offer; lease renewal and extension; rent review; and
observing statutory regulations on repair standards and safety. A solicitor can thus to
assist landlords in meeting the various legal obligations imposed upon them.
To a lesser extent, tenants might also require advice on their rights and obligations
under a tenancy agreement, for instance around deposit arrangements. However, it
might be expected that tenants are less likely to require non-contentious advice given
the fewer statutory obligations they have.
In terms of other sources of advice, we assume that advice agencies such as CABx and
Shelter; local authorities; and industry-specific bodies may provide some advice on
non-contentious aspects of landlord-tenant relationships (though we assume the
extent of advice from these providers in such cases is comparatively small compared
to contentious issues). For instance, some local authorities provide sample tenancy
agreements on their websites.
Role of Solicitors
We expect that there may be a reasonably sized role for privately-funded solicitors in
providing the various legal services to landlords mentioned above, most of which will
revolve around the initial stages of a landlord-tenant relationship. However, in the
day-to-day relationship between landlord and tenant (e.g in arranging for repairs to
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be done) we assume there is little in the way of work for solicitors, with the bulk of
this work done by landlords themselves without the need for legal services, or by
letting agents on behalf of landlords.
We do not believe there will be a significant role for legal aid in this area. We assume
that legal aid is much more prevalent for disputes/contentious issues between
landlords and tenants. An analysis of the subject matter of HOU (housing) intimations1
suggests that of the 1770 advice and assistance intimations submitted to SLAB
between 2010 and 2015, fewer than 5% relate to non-contentious landlord and tenant
issues.
We also expect that to some extent, landlords and tenants are able to arrange the
non-contentious aspects of tenancies without the need for formal legal services,
given the readily-available advice online. For example, specialist organisations such
as Shelter (see website here) and the Scottish Association of Landlords (see website
here), as well as local authorities all provide relevant information.
Geographic Coverage
We are not aware of any geographical trends or patterns in terms of the availability
of legal services in this area.
Reports of problems with access to solicitors or advocates
We have no data available to us, nor reports made to us which suggest that the
existence of a systemic problem with the availability and accessibility of legal
services in this area, in general terms. We have not been made aware of any specific
instances of problems in this area.
Overall summary of the availability and accessibility of legal services
For those seeking legal advice on non-contentious landlord and tenant issues, we
assume that there is provision by private firms for landlords on contractual issues and
some basic advice and information (mainly for tenants) by non-solicitor organisations.
Our initial conclusion is that non-contentious landlord and tenant matters are a low
risk area of law in terms of there being no systemic problem with access to solicitors
that results from a lack of availability of legal services.
1
Advice and assistance (A&A) helps pay for advice from a solicitor on any matter of Scots law, civil or
criminal – for example, to try to settle a dispute without going to court, or to advise on whether there
is a legal case to take forward. Civil legal aid helps pay for a solicitor to act in court. It covers the
preparation work, as well as the hearing itself, and can provide funding for advocates and experts if
needed. Only a solicitor can grant advice and assistance (make an ‘intimation’) or submit an
application for civil legal aid. Some people need only advice and assistance, others need only legal aid,
and some need both. Many people start the legal process with advice and assistance, and then move on
to legal aid. See http://www.slab.org.uk/public/civil/info/.
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Probability that a
systemic access
problem is
occurring
1 (low) –
5 (high)
Noncontentious
landlord and
tenant issues
1
Reports of actual
instances
of
problems
with
access
1 (no reports) –
5 (consistently
reported systemic
access problems)
1
Exposure
[Probability
Reports]
x
1–4 Green
5-14 Amber
15-25 Red
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Questions
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Do you have any additional data you would be willing to share with us
regarding this area, or are there any additional sources of data we should look
at?
Are you aware of any specific instances where someone has not been able to
find a solicitor for a non-contentious landlord and tenant issue?
To what extent do you think that solicitors are involved in this area (for
example, as a proportion of all tenancy agreements signed, how many featured
the involvement of a solicitor?)
Do you believe there are any problems in this area of law in relation to
urban/rural factors? Is there sufficient provision in rural areas with less private
rented housing?
Do you have any suggestions for additional organisations which we may wish to
consult with?
Consultees
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SOLAR (Society of Local Authority Lawyers and Administrators in Scotland)
Shelter
Scottish Federation of Housing Associations
ALACHO (Association of Local Authority Housing Officers)
Chartered Institute of Housing
Scottish Association of Landlords
Shelter
CAS
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