Does absence of landlord registration invalidate the tenancy agreement?
Readers will be aware it is an offence for a landlord to let property in Scotland unless registered with the local authority landlord register. If convicted, landlords face a fine of up to £50,000.
While the absence of a landlord registration is a matter for which consequences might well ensue, does lack of registration have any effect on the tenancy agreement? It is this question that was recently considered by the Upper Tribunal in the case of Patel v Stubbs 2024 UT 55. In this case, the tenant sought to argue, amongst other things, that the First-tier Tribunal was wrong in law for granting an eviction order where the landlord registered after the tenancy commenced. Sheriff McCartney held the failure of the Landlord
“to register… could have other consequences, but it does not follow that the Respondent cannot seek the orders as granted. If the Appellant’s argument was true, the Appellant would be entitled to stay in the leased address for whatever period she pleased, and without any obligation to pay rent simply because a landlord had not registered with the local authority….”
This case prompted the writer to recall a decision of the Sheriff Appeal Court in AB v CD [2017] SAC (Civ) 32 in which a tenant sought to resist a landlords claim for payment of unpaid rent by arguing that the landlord’s breach of various regulations including absence of registration resulted in the lease being an illegal contract, which meant that no rent was due.
In so far as landlord registration was concerned, the Sheriff Appeal Court concluded that the statutory regime “establishes criminal penalties where a landlord fails to register…. It does not render the contract void and does not entitle the appellant to avoid paying rent for her period of occupation under the lease….”
The consequences of a failure to register for landlords are clearly set out in the Antisocial Behaviour etc (Scotland) Act 2004. However, it does not affect the validity of the contractual agreement between the parties.
