Tenants – keep claiming your unlawful fees back

Claims by LetScotland that a legal precedent has been set after a tenant dropped their small claims action to reclaim illegal letting agent fees are completely unfounded.

The facts are as follows:

The tenant in question sought and took advice from Shelter Scotland’s legal team to help them reclaim unlawful pre-tenancy fees. However, the tenant decided to drop the case before it was heard in court, citing the following reasons:

  • the considerable amount of time the dispute was taking up (the case was initiated in January 2013 and had been delayed several times)
  • the significant stress of the court action compared to the relatively small sum of money being reclaimed.

It is clear from the facts that this case cannot represent any form of legal precedent or ‘win’, since it was dropped.

This means no decision was reached based on the terms of the Rent (Scotland) Act 1984 – the act which prohibits pre-tenancy fees. Instead, the tenants decided to walk away from the dispute without the case being heard.

The decision by LetScotland to issue contradictory advice to letting agents across Scotland – based on their disingenuous interpretation of the dispute – was unhelpful, both for tenants and lettings professionals seeking to comply with the law. So, contrary to LetScotland’s assertions, this was not Shelter Scotland’s case, we did not withdraw from the court action and this did not set a legal precedent.

In an effort to provide both tenants and letting agents with clarity on the issue of fees charged before the Scottish Government’s clarification of the law – which came into force on the 30th of November 2012 – we have sought an advocate’s opinion. This detailed opinion clearly states that the legislation both prohibits the requirement that tenants pay fees to access a tenancy and that the Rent (Scotland) Act 1984 applies to letting agents. We have made this opinion available on our website and we encourage both agents and tenants to refer to this opinion.

Shelter Scotland will continue to encourage and support tenants reclaiming unlawfully charged premiums through the Reclaim Your Fees website. We hope that this detailed opinion gives sufficient clarity on the issue of letting agents’ fees, and this issue is finally put to rest.

Tenants who have been asked to pay fees should use our online toolkit, and report any agents who continue to charge fees to their local Trading Standards office via the Citizens Advice Bureau. They can be contacted on 08454 04 05 06.

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James Battye

James Battye

I manage Shelter Scotland’s Oak Foundation funded private rented sector project work. The project is focussed on increasing private tenants’ consumer voice in Scotland, supporting new initiatives to encourage best-practice amongst letting agents and working with private landlords in Dundee and Lochaber to improve standards.

  • Most people living in privately rented flats have a type of tenancy
    called a short assured tenancy. This didn’t exist at the time that the
    1984 Act was written, but the the Housing (Scotland) Act 1988, which
    created the category of short assured tenancy, specifies that the
    protection from tenancy fees provided by the 1984 Act still applies to
    short assured tenants.