In each case, the landlord argued they believed they were exempt from the 2011 Regulations, one because he had previously lived in the let property and the other because he believed the contract was a short-term let under the Civic Government (Scotland) Act 1982 (Licensing of Short-term Lets) Order 2022.

The first case was heard by legal member Martin McAllister and the second by legal member Valerie Bremner and ordinary member Sandra Brydon. In both cases, the applicant and respondent appeared in person at a case management discussion.

Not credible

In the first case, landlord Guifu Liu and tenant Zhihan Huang entered into a private residential tenancy for a property in Edinburgh, with a deposit of £1,100 paid to the landlord. Prior to the tenant moving in, the landlord lived in the let property. The deposit was not returned at the end of the tenancy because the landlord decided to retain it to address costs incurred by issues with the property.

The landlord’s evidence was that he had set the tenancy in a hurry as he was leaving the country and came to the view that a landlord residing a tenanted property did not need to comply with the 2011 Regulations. He said that he had come to the view that this exception applied if he had previously lived in the property, and this gave him the status of a resident landlord.

In reaching a decision, the legal member observed: “The Tribunal had regard to the fact that the deposit was unprotected for the whole of the tenancy and that it has still not been returned by the Respondent. The Respondent has retained the tenancy deposit for reasons with regard to costs which he said he has incurred because of the Applicant. The Tribunal had regard to the fact that the Applicant was and is being denied the opportunity to have resolution of such matters being carried out by an approved tenancy deposit scheme.”

On the landlord’s defence, they concluded: “The Respondent’s position was that he erred because he thought that he was a ‘resident.’ This is not considered to be a mitigating factor because it is not credible that a person would consider that the Regulations did not apply to him because, at some point in the past, he had resided in the property which is being let.”

Accordingly, the Tribunal considered that a sanction of £2,400 to be fair and proportionate in the circumstances.

Taken as his home

In the second case, landlord Gavin Lindsay and tenant Philip Graemer entered into a tenancy for a property in Glasgow with a deposit of £600. Another tenant, who was not involved in the case, occupied a second bedroom at the property and remained there after the applicant’s tenancy ended. After he left he made enquiries as to his deposit but did not receive a reply, nor his deposit back.

The respondent, who was not a registered landlord, accepted he had not protected the deposit, and said he had simply rented out his property for a short-term let to two tenants while he required to stay with a relative. He requested an adjournment, but never returned to make further representations in two further case management discussions.

In making its decision, the Tribunal said: “The Applicant’s position was clear that he had taken on the tenancy to be his only home during the period of the tenancy, the Respondent did not live at the address during the tenancy and the parties were unconnected. The Tribunal was satisfied that this was a private residential tenancy and not a holiday or short-term let. It was clear that the tenancy was taken on by the Applicant as his home and that the landlord did not reside at the property during the tenancy.”

It concluded: “The Applicant’s deposit had been unprotected for the entire period of the tenancy and the failure to adhere to the duties had frustrated the Applicant’s ability to have regard to the independent dispute resolution services offered by scheme providers. Having regard to these factors the Tribunal took the view that this was a breach requiring a sanction at the higher end of the range.”

The Tribunal therefore determined that the respondent should pay the applicant £1,200, twice the amount of the deposit.