In December 2017 the jurisdiction of the First-tier Tribunal for Scotland (Housing and Property Chamber) expanded to include applications in respect of Private Sector Rented Cases and Private Residential Tenancies. In the 18 months since this came into effect the Tribunal has presided over a number of cases involving unprotected tenancy deposits.

At SafeDeposits Scotland we have monitored the tenancy deposit cases going before the Tribunal, with decision papers published on the First-tier Tribunal website. The decisions are publicly available and you too can browse cases from across Scotland.

Where a landlord is found to have been in breach of the Tenancy Deposit Schemes (Scotland) Regulations 2011 - i.e. they have failed to transfer the deposit to a government approved tenancy deposit scheme and/or failed to provide their tenant with prescribed information - the Tribunal has the ability to impose compensation of up to three times the deposit value.

Between December 2017 and June 2019 we read over 200 cases where the tenancy deposit regulations had been breached. During that period awards to tenants totalling £186,657 - an average of more than £900 per case - were ordered. The highest order we found was one relating to a case in Edinburgh, where the landlord was instructed to pay £3,937.50 to their tenant.

It is important to note that the vast majority of landlords operate within the rules - at the end of March 2019 a combined total of 219,629 deposits were being held by Scotland's three tenancy deposit schemes. And while 200 cases were presided over during 18 months, this does not mean that the equal number of breaches were committed within that year and a half period - many related to tenancies which had commenced some years before.

In relation to that last point about older tenancies, in some cases lack of awareness of the regulations that came into effect in 2012 was provided as a reason for a deposit not being protected. In a number of other instances deposits were not protected as a result of oversight; generally failures to protect deposits were not found to be deliberate acts of malice.

Perhaps one of the most notable recurring themes within the decision papers is where a landlord has not lodged their tenant's deposit with an approved scheme and has withheld the deposit at the end of the tenancy due to, for example, damage. Despite the fact that there may indeed have been costly damage caused to their property by the tenant, if they have failed in their responsibility to protect the deposit at the start of the tenancy then their breach of the legislation means they could be ordered to not only repay the deposit, but pay an additional penalty. If the deposit had been lodged with an approved tenancy deposit scheme both parties would have had access to a free and impartial adjudication service which - subject to suitable evidence - may well have decided in the landlord's favour.

If you are unsure of your rights and responsibilities in relation to tenancy deposits, you can find a summary of the regulations right here on our website.