Sublease Agreement (Scotland)

What is a sublease agreement?

A tenant who is already renting a private residential property can use a sublease agreement to grant a tenancy to another tenant. The new tenant becomes a subtenant and the existing tenant will be the sublandlord. The property will be used as a subtenant's home and main place of residence. This sublease agreement can be used in Scotland.

A different sublease agreement is available for use in England.

This agreement will be used for private residential properties and should not be used if the property is owned by the local council.

What is the difference between a sublease agreement and a lodger agreement?

A lodger will occupy a room or a space within a property and the sublandlord will remain living in the rest of the property. A lodger agreement creates a common law tenancy, which is a contractual agreement between the owner and the lodger. A lodger agreement can be terminated with notice, as per the terms of the agreement.

A sublease agreement creates a private residential tenancy. The agreement will be open-ended meaning there is no fixed end date. In order to end a sublease agreement, a sublandlord must rely on particular grounds for eviction and must follow a prescribed process. Subtenants under a sublease agreement will have particular rights in accordance with the relevant housing laws.

Is it mandatory to have a written sublease agreement?

Yes. If a tenant wants to rent a property to a new tenant under a sublease agreement, they must give the subtenant a written copy of all of the terms of the tenancy.

What are the prerequisites of a sublease agreement?

Before creating a sublease agreement, the sublandlord who is granting the new sublease must:

• ensure they have the legal authority and relevant permission to let the property from their own landlord
• register on the Scottish Landlord Register with the local council relevant to the location of the property that will be let under the sublease agreement
• ensure that they understand the rights of the subtenant and their duties and responsibilities as a sublandlord
• register with an approved tenancy deposit scheme within 30 days of the sublease starting
• provide the subtenant with the required information pack before their tenancy starts
• provide the subtenant with a privacy notice
• ensure that the terms of the proposed sublease agreement will fall within the scope of a private residential tenancy agreement (and the property should not be used for commercial purposes)

The parties may also wish to receive advice* before the agreement is finalised and signed.

The agreement will not be reviewed by a lawyer to ensure that the legal content applies to the personal situation of the parties. In order to receive advice about the particulars of this agreement before it is finalised, it will be necessary to instruct a lawyer. For this type of agreement, it is necessary to consult with a lawyer who is regulated by an approved regulator in the legal services sector. It is possible to search for a lawyer on the Law Society website.

Who can enter into a sublease agreement?

The sublandlord of the sublease agreement will be a natural person. They must already have a tenancy agreement in respect of the relevant property. The subtenant will be a natural person.

The parties should be over the age of 16. The parties should have the legal capacity to enter into a contract. Legal capacity refers to a person's ability to make and understand legal decisions (meaning that they are of sound mind).

What can be the duration of a sublease agreement?

The sublease agreement will be open-ended, meaning it will not have a fixed end date. In order to end a sublease agreement, a sublandlord must rely on particular grounds for eviction and must follow a prescribed process.

What must be done after the sublease agreement is ready?

The agreement should be signed by both parties. It is possible to sign the agreement electronically. The parties can choose to sign the agreement in the presence of a witness, to assist in proving the validity of the agreement. The parties may wish to seek advice about the contents of the agreement*.

After the agreement has been signed, the parties should retain a copy of the agreement containing the signatures of both parties. The subtenant may occupy the property in accordance with the terms of the agreement. The sublandlord should provide the tenant with a tenant information pack before their tenancy start date (by no later than the date the tenancy is due to start).

The agreement will not be reviewed by a lawyer to ensure that the legal content applies to the personal situation of the parties. In order to receive advice about the particulars of this agreement before it is finalised, it will be necessary to instruct a lawyer. For this type of agreement, it is necessary to consult with a lawyer who is regulated by an approved regulator in the legal services sector. It is possible to search for a lawyer on the Law Society website.

Should a sublease agreement be witnessed?

Whilst not mandatory, a sublease agreement can be witnessed, to help prove the validity of the agreement. Each party may therefore sign the agreement in the presence of a witness, who will then also sign the agreement. The witness should be an adult with capacity, who is not a party to the agreement.

What documents should be attached to a sublease agreement?

If the sublandlord is providing an inventory, then this should be attached at the space provided at schedule 1 of the agreement. A property inventory will provide a summary of all the items (such as furniture and white goods) in the property and will note the condition of those items.

What happens if the parties want to end the agreement?

The sublandlord must follow set rules and a particular process in order to end the agreement. The notice provided will depend upon the duration of the agreement and the grounds relied upon. Information is available on the government website about this.

If the subtenant wishes to end the tenancy, they should provide written notice to the sublandlord and should provide at least 28 days of notice.

What must a sublease agreement contain?

A sublease agreement will:

• identify the relevant parties - this will include the subtenant, the sublandlord, the letting agent and any guarantor
• define how the parties must communicate - this will explain how information about the agreement will be communicated between the parties
• identify the property – this should make it clear what areas and facilities are included as part of the property
• confirm how the subtenant may use the property – the subtenant will be granted permission to use the property as their home
• confirm the start date - this will confirm when the agreement will begin and when the subtenant may move in
• confirm the agreed rent – this will confirm the amount of rent, how often rent will be paid and whether the rent may be increased throughout the agreement
• confirm the details about the payment of any deposit - this will explain how the deposit will be paid and how much the deposit will be
• set out the obligations of each party and the terms of occupation – this will include all duties and responsibilities of the sublandlord (e.g repairs and health and safety) and all obligations of and restrictions upon the subtenant
• confirm how the agreement may be ended – this will define the specific grounds the sublandlord must rely upon and the notice which must be provided by either party

What laws apply to a sublease agreement?

The following key legal provisions will be relevant to a sublease agreement:

• The Private Housing (Tenancies) (Scotland) Act 2016
• The Private Residential Tenancies (Statutory Terms) (Scotland) Regulations 2017
• The Private Residential Tenancies (Prescribed Notices and Forms) (Scotland) Regulations 2017
• The Data Protection Act 2018
• The Antisocial Behaviour etc. (Scotland) Act 2004
• The Housing (Scotland) Act 2006

Help from a lawyer

You can choose to consult a lawyer if you need help.

The lawyer can answer your questions or help you through the process. You will be offered this option when you complete the document.

How to modify the template?

You fill out a form. The document is created before your eyes as you respond to the questions.

At the end, you receive it in Word and PDF formats. You can modify it and reuse it.