The repairing standard: new law?

Author: Derek O'Carroll | Posted: November 7, 2006

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The following is an extract of a paper delivered by Derel O'Carroll, Advocate, at the Rent Assessment Panel for Scotland Annual Conference on 26 October 2006.

Introduction
Chapter 4 of part 1 of the Housing (Scotland) Act 2006 is concerned with the repairing standard and is expected to come into force next year.  The repairing standard will apply to any tenancy of a house let for human habitation unless excepted by section 12.  The excepted tenancies are Scottish secure tenancies, short Scottish secure tenancies, tenancies of houses on land subject to an agricultural tenancy, crofting tenancies and small holdings. Only registered social landlords, local authorities and water and sewage authorities can offer SSTs and short SSTs. Those landlords, since 2002, have had their own repairing code in section 27 and schedule 4 to the Housing (Scotland) Act 2001.  Those landlords however, in a limited number of cases, offer non-Scottish secure tenancies (generally common law tenancies or licences/occupancy agreements).
The new repairing standard applies only to tenancies. Thus, the common law with regard to definition of tenancies, and the need to ascertain the nature of the right in question (especially with so called occupancy agreements) will remain in some cases.
At present, the law with regard to repairing and maintenance of private rented houses is found in three main sources. 
First, schedule 10 to the housing (Scotland) Act 1987 ("hereafter "schedule 10") applies to any contract for letting of a house for human habitation subject to certain exceptions.  The schedule implies statutory conditions relating to repair into the tenancy agreements for such houses.  In short, the obligations are as follows:
• the house is at the commencement of the tenancy in all respects reasonably fit for human habitation;
• the house will be kept by the landlord during the tenancy in all respects reasonably fit for human habitation;
(in both cases, having regard to the building regulations when assessing that standard)
• to keep in repair the structure and the exterior of the house;
• to keep in repair and proper working order the installations in the house for the supply of water gas and electricity, sanitation, space heating and hot water.
There are certain exceptions to the application of these implied terms.  For example, where the lease is for a period of three years or more, the parties may agree that the tenant is to put the house into a habitable condition.  Another example is that the parties may make an application to the Sheriff for an order modifying the repairing obligations.  Another exception exists where the landlord cannot carry out the repairs because it lacks the necessary access rights over another part of the building in which the house is located.  There is particular provision made for repairs to the common parts.  Finally, the landlord is not required to carry out repairs for which the tenant is liable because the tenant has failed to behave in a tenant-like fashion; or which are due to an Act of God or are repairs to property which the tenant is entitled to remove from the house.
The second source of obligations as to repair is the common law.  The common law implies certain obligations into the lease between the parties.  These common law obligations will be implied even where for whatever reason, the statute does not apply.  The usual rule is that the common law obligations are implied unless expressly excluded by the express terms of the contract of lease. At common law, the landlord has a duty to inspect the subjects at the commencement of the tenancy to ensure that the subjects are habitable and then to keep the subjects in a habitable and watertight condition during the course of the tenancy.  At common law, the tenant is obliged to act in a tenant-like fashion.  This includes the obligation to keep the subjects at the tenancy aired and fired and to take reasonable care of the subjects of the tenancy. At common law, where the landlord materially fails in its repair obligations, the tenant is entitled inter alia to withhold rent in order to compel performance.
The third source of repair obligations, formally speaking, are the express terms of the agreement between the parties.  Thus, the parties may agree that one or other is expressly liable to carry out particular repairs or maintenance. So long as that agreement does not contravene schedule 10, such an agreement is binding on the parties.  In practice however, in the majority of cases, the tenancy agreement adds little by way of express terms to the terms implied by statute but may often seek to exclude the remedy of withholding of rent and associated remedies.
There is no up-to-date comprehensive authoritative text of the law of disrepair in residential tenancies. Some useful sources of commentary on the law (one of them English) , to be used with greater or lesser amounts of caution are as follows: Rankine (1916), Law of Leases in Scotland; Stair Memorial Encyclopaedia, Vol. 13; Paton and Cameron (1967), Landlord and Tenant; Robson and Halliday (1998) Residential Tenancies; Brown and McIntosh (1987) Dampness and The Law, Shelter; Knafler (1997), Remedies for Disrepair, Sweet and Maxwell and my own detailed commentary to part 6 (repairs) of the Model Scottish Secure Tenancy Agreement, found on the Scottish Executive website.
The 2006 Act repeals schedule 10 of the 1987 Act. It sets up the repairing standard which may be considered to be a self-contained repairing code applicable to the private sector. A copy of it is attached as an appendix to this paper for ease of reference. The Act makes no alteration to the common law.  The question that arises is: to what extent will the new law make any substantive change to the existing law?

(Continued. For full paper please download using link at the top of the page.)