Philip Buchan, Associate with Murray Beith Murray, writes in the summer edition (June 2019) of Scottish Land & Estates LandBusiness magazine.
Read the full article below:
Landlords have a duty under common law to provide housing that is reasonably fit for human habitation. In the absence of lease terms or statutory provisions, tenants are entitled to these rights. The Housing (Scotland) Act 1987 imposed a duty on local authorities to ensure that houses within their district meet a ‘tolerable standard’. All houses, including those in agricultural tenancies, should be up to these standards.
The Repairing Standard was brought into force on 3 September 2007 to specify the Repairing Standard and to give tenants in the private rented sector additional remedies where housing does not meet a minimum standard of repair.
Section 13 of the Housing (Scotland) Act 2006, as amended, provides that a house meets the repairing standard if:-
The repairing standard duty applies to any tenancy of a house let for human habitation with certain exceptions: under section 12 (1) of the 2006 Act it does not apply to a tenancy of a house that is on land let under an agricultural tenancy.
Following the recent housing summit, the standards required in private rented housing have been modified by new regulations. As of 1 March 2019, the Tolerable Standard has been added as a new standard to the Repairing Standard and in determining whether a house meets the Repairing Standard regard must be given to any guidance issued by the Scottish Ministers. Holiday lets which are subject to other rules applying to non-domestic accommodation have been removed from the Repairing Standard provisions.
Regulation 2(2) of the modifying legislation, which comes into effect on 28 March 2027, amends section 12(1) of the 2006 Act with the effect that the Repairing Standard applies to tenancies under the Agricultural Holdings (Scotland) Act 2003, the Crofters (Scotland) Act 1993 and the Small Landholders (Scotland) Acts 1886 to 1931.
The Repairing Standard puts the onus for any work required on the landlord and it is not clear whether the Repairing Standard will take precedence over existing post- lease agreements that transfer responsibilities to the tenant, or who will be responsible for any work that is required as a result of the tenant’s failure to maintain.
The 2003 Act allows tenants to seek nullification of a post-lease agreement if buildings and fixed equipment are not now in in a worse state of repair than when the agreement was made, so it might be possible for the tenant to argue that the Repairing Standard should take precedence over the post-lease agreement.
It should also be considered how these works will be dealt with at rent review. Scottish Land & Estates has suggested that the tenant be responsible for meeting the Repairing Standard with costs considered at waygo.
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