Commentary on Parts Part 1 – Housing Standards Landlord’s duty to repair and maintain
39.Section 12 sets out the tenancies to which the repairing standard applies. It will apply to all tenancies, except Scottish secure tenancies and short Scottish secure tenancies, houses purchased by a local authority to be repaired and used as housing accommodation as an alternative to demolition, houses occupied by tenants of tenancies under the Agricultural Holdings (Scotland) Acts, tenancies of houses on crofts and tenancies of houses on holdings to which the Small Landholders (Scotland) Acts 1886 to 1931 apply. In terms of the interpretation section (section 194) the standard does not apply to occupancy arrangements as they are not tenancies, but it does apply where living accommodation is occupied by a person under that person’s terms of employment.
40.Section 13 outlines the definition of the repairing standard. Subsection (1) sets out the criteria to be met if a house is to meet the repairing standard. Subsection (2) requires that, in determining whether a house is fit for human habitation, regard should be had to whether, and to what extent, the house fails to meet building regulations in force in the area. Subsection (3) states that the standard of repair of the structure and exterior of the house should have regard to the age, character and prospective life of the house and the nature of the locality. Subsection (4) means that gas, water and electricity supplies which are the landlord’s responsibility but are outside the house are also covered. Subsection (5) states that the requirement in subsection (1)(f)to have satisfactory provision in relation to fire detection and warning is to be determined with regard being paid to relevant building regulations and guidance issued by Ministers.
41.Landlords’ duties to repair and maintain a property are set out in section 14. Landlords have a duty to ensure that the house meets the repairing standard. They must ensure that work is carried out at the start of the tenancy so that the house meets the standard, and at all times during the tenancy, but this latter duty only applies where the landlord is notified by the tenant of a problem or the landlord otherwise becomes aware that work is required. This work should be carried out within a reasonable time and must include making good any damage caused in carrying out the work.
42.Section 15 details how the repairing standard applies to flats or other situations where the house forms part only of the premises. Subsection (1) makes clear that the reference in the repairing standard to the structure and exterior of the house includes any part of the building in which the landlord has an interest. This has the effect of including common property in the assessment of the repairing standard in relation to the structure and exterior. In terms of subsection (2), the landlord is only obliged to carry out work that will have an effect on the parts of the premises that the tenant is entitled to use.
43.Section 16 excludes from the landlord’s duty under the repairing standard any work where the tenant has the responsibility for the work and the house is let for a period of not less than three years. In addition, where the need for work under the duty arose from the tenant’s action, the duty would not apply. The duty under the repairing standard does not include rebuilding or reinstating a house that is damaged or destroyed or work on anything that the tenant is entitled to remove from the house. The section also provides that the landlord has not failed to comply with the obligation where he has tried to carry out the required work, but cannot obtain rights to do so.
44.Section 17 prevents contracting out from the landlord’s obligation under section 14(1) through the terms of a tenancy or other agreement between a landlord and tenant, unless consent has been obtained from the sheriff under section 18.
45.Section 18 provides that the landlord’s duty to repair and maintain the property may be varied or excluded by order of the sheriff, on application from landlord or tenant. This can be done only if the sheriff considers it reasonable and both parties consent.
46.A landlord must inspect a house before a tenancy starts to identify any work required to meet the repairing standard. The landlord must tell the tenant of any work needed to meet the standard (section 19). Landlords must give tenants, on or before the tenancy starts, written information on the repairing standard and the landlord’s duties under the standard. The Scottish Ministers can issue guidance on the information to be provided to tenants, to which landlords must have regard (section 20).