Letting agency work generally means you either:
- carry out work for a private landlord who wants to let their property out to a tenant
- manage a property which is either rented out to a tenant or is planned to be
Letting agency work has a legal definition. You must consider this definition when deciding whether you need to register and comply with the Code. For a more detailed explanation, and to view the legal definition, see section 61 of the Housing (Scotland) Act 2014.
If you are not sure
It's up to every person and company involved in letting out property to decide whether they think what they do counts as letting agency work.
If you are not sure, you should ask yourself the following questions:
- is the work you do for a property owner a business arrangement?
- do you charge a fee or take another type of payment for the work you do? (If not, this does not automatically mean you're not a letting agent)
- are you regularly doing work related to letting and managing properties? (If you're regularly doing work for a private landlord, this may be considered a business arrangement)
If you answer 'yes' to all these questions, you probably do need to join the register.
If you still are not sure, you should seek legal advice to find out whether you need to register.
Anyone doing letting agency work must join the register, but there are some situations where it may not be clear whether you should join.
Here are some of the more common situations, and whether you should join if they apply to you. This list does not cover all scenarios and if you are in doubt, you should seek legal advice.
If you work for an estate managing its private lets
If an estate lets out its own private properties, whether it has to register as a letting agent will depend on how the business is structured.
If staff carrying out letting work for an estate are employed by the same company (legal entity) that owns all the properties they let, the company they work for does not have to register.
If the staff are employed by a different company (legal entity) from the one that owns the properties, the company those staff work for will have to register.
If you own and manage your own properties
You do not need to register if you only manage properties you own.
If you've established a company to own and manage your properties
If you have established a company to own your properties you are unlikely to need to register if:
- you carry out the letting and management of your company's properties in your role as a Director, officer or employee of the company, and
- you do not let or manage properties owned by another private landlord
If you manage properties for a family member
Whether you need to register will depend on the exact circumstances of the arrangement you have in place.
If you're helping with the letting and management of a property that's owned by a family member, you will not usually be expected to register if:
- you're making no money from it - not charging a fee or being paid (no commercial gain)
- it is not part of your business
- you only occasionally help out
You would still need to register as an agent under landlord registration.
If you're managing a family member's property under a power of attorney
You do not need to register in this situation.
If you're a solicitor who prepares leases for your clients
The definition of letting agency work must be considered within the context of the whole of Part 4 of the Housing (Scotland) Act 2014.
The definition of letting agency work, which incorporates a definition of relevant instructions, does not capture the act of only preparing a lease. If, in your capacity as a solicitor, you only prepare a lease you will not expected to register.
If you carry out other actions which constitute "letting agency work" you will be required to register.
If you're a social landlord (registered social landlord and local council)
If you're a social landlord, you will not be expected to register if you only manage properties that:
- you own
- are owned by a local council
- are owned by a registered social landlord
If you manage properties for a private landlord you will be expected to register.
If you're a registered social landlord (RSL) or RSL subsidiary
If you're an RSL or subsidiary but you only manage properties your organisation owns directly, you'll not be expected to register.
An RSL will be expected to register, though, if:
- it manages properties it has leased to its subsidiary company
- it or its subsidiary manages properties for a private landlord (not a local council or an RSL).
If you only let and manage holiday lets
Where you only let out and manage holiday lets you will not be expected to register.
If you're a contractor (plumber, electrician etc.)
You will not normally have to register if you're a contractor and the work you carry out on a property is just part of your job.
If you're not based in Scotland
If your business is based outside Scotland but does letting agency work in Scotland, you'll need to join the register and comply with the Code.
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