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Fuel Rights Handbook 21st edition

Repairing obligations

• Scotland
• Repairs and improvements
• Structure and exterior
• Installations for heating and for the supply of gas and electricity

Your landlord’s repairing obligations may be set out in a written tenancy agreement; for the vast majority of private tenancies entered into since 1989 in England and Wales, this is an ’assured shorthold’ tenancy or, more rarely, an assured tenancy. Tenants of councils and housing associations in Scotland have a right to a formal written lease.1ss53 and 54 H(S)A 1987 Whether or not you have a written agreement and whatever is stated in any such written agreement, there is legislation which puts a wide range of obligations on landlords.2For example, s11 LTA 1985

Repairing obligations can be enforced through the County Court and apply against both public and private sector landlords. For claims of up to £10,000, the arbitration or small claims procedure is used. As a well as compensation, remedies by way of specific performance or an injunction are available to compel a landlord to fulfil obligations or take steps to remedy harm with decisions of tribunals being enforceable by the courts.3Joyce v Liverpool City Council; Wynne v Liverpool City Council [1995] 3 All ER 110 Under the rules of court, you are expected to take certain steps before commencing a claim. A ‘pre-action disrepair protocol’ applies, setting out procedures for both parties to follow in a disrepair claim, encouraging exchange of information and settlement without recourse to litigation. Details and guidance notes are available on the Ministry of Justice website (justice.gov.uk).

 

1     ss53 and 54 H(S)A 1987 »

2     For example, s11 LTA 1985 »

3     Joyce v Liverpool City Council; Wynne v Liverpool City Council [1995] 3 All ER 110 »

Scotland

The landlord’s obligation is to make sure that any property rented out is in a ‘tenantable and habitable condition’,1Erskine’s Institutes II/4/63 or ‘reasonably fit for human habitation’.2s27 H(S)A 2001 These two phrases almost certainly mean the same thing – the property must be safe, free from damp and generally in a suitable condition for you and your family to live in. Local authorities may act where properties are ‘below tolerable standard’. Private landlords in Scotland have a duty to ensure that rented accommodation meets a basic standard of repair called the ‘Repairing Standard’ under the Housing (Scotland) Act 2006.3s13 H(S)A 2006 This covers the legal and contractual obligations of private landlords to ensure that a property meets a minimum physical standard. It must have ’satisfactory thermal insulation’ and an electricity which complies with the requirements for the electrical installations in the property.4ss861(ca) and (ga) H(S)A 1987 as amended by s11 H(S)A 2006

Your landlord must carry out a pre-tenancy check of the property to identify work required to meet the Repairing Standard and notify you of any such work. Your landlord has a legal obligation to provide you with written information about the effect of the Repairing Standard provisions on the tenancy. A home meets the Standard if:

•it is wind and water tight and in all other respects reasonably fit for human habitation;
•its structure and exterior (including external pipes) are in a reasonable state of repair and in proper working order;
•its installations for the supply of water, gas and electricity and for sanitation, space heating and heating water are in a reasonable state of repair and in proper working order;
•any fixtures, fittings and appliances provided by the landlord under the tenancy are in a reasonable state of repair and in proper working order.

It is the landlord’s duty to repair and maintain the property from the tenancy start date and throughout the tenancy. On becoming aware of a defect, the landlord must complete the work within a reasonable time.

The repairing obligation applies to all tenancies except Scottish secure tenancies and short Scottish secure tenancies with various social landlords and certain agricultural tenancies.5s12 H(S)A 2006 The landlord should inspect the property and bring it up to standard before any tenancy starts. If this is not done, you can sue for damages and/or an order of ’specific implement’ to force the landlord to carry out any necessary works. The landlord’s duty may include carrying out works to improve the property, rather than merely repairing it, if that is necessary to comply with the duty. However, it is much more difficult in Scotland to get an order (‘specific implement’) which enforces that duty.

If problems arise after the tenancy starts, your landlord is only obliged to deal with them if s/he knows, or should know, about them. If you believe your home falls short of the Standard, you should report any problems as soon as they arise, preferably in writing.

If you cannot agree with your landlord about whether or not the Standard is being met, you can take your case to the First-tier Tribunal for Scotland (Housing and Property Chamber).6First Tier Tribunal for Scotland (Transfer of Functions of the Private Rented Housing Panel) Regulations 2016 No.338 This tribunal is an independent body which provides a mediation service in repairing obligation cases. If mediation is not successful, an inspection of your home may take place and a hearing held before the tribunal.7First Tier Tribunal for Scotland Housing and Property Chamber (Procedure) Regulations 2016 No.339 It may decide:

•whether your landlord has failed to comply with the Repairing Standard or not;
•to issue an enforcement order if your landlord has failed to comply, setting out the work to be completed;
•to reduce your rent during some of the enforcement order period.

If an enforcement notice is issued, it sets out the repair work required, and when it must be completed (this will be at least 21 days). If your landlord fails to comply with the notice, the local authority may undertake the work (and charge the landlord).

 

1     Erskine’s Institutes II/4/63 »

2     s27 H(S)A 2001 »

3     s13 H(S)A 2006 »

4     ss861(ca) and (ga) H(S)A 1987 as amended by s11 H(S)A 2006 »

5     s12 H(S)A 2006 »

6     First Tier Tribunal for Scotland (Transfer of Functions of the Private Rented Housing Panel) Regulations 2016 No.338 »

7     First Tier Tribunal for Scotland Housing and Property Chamber (Procedure) Regulations 2016 No.339 »

Repairs and improvements

For England and Wales generally, and in Scotland in connection with the following rights, it is important to distinguish between ‘repairs’ and ‘improvements’. If the works which are needed constitute improvements, rather than just repairs (and the case cannot be brought under the headings of ‘negligence’ or ‘premises prejudicial to health’ – see below), a landlord has no obligation to improve a home, and you have no rights.1Ravenseft Properties Ltd v Davstone Holdings Ltd [1979] 1 All ER 929

Local authorities have a duty to control premises prejudicial to health under public health legislation.2See Environmental Protection Act 1990; Public Health Act 1936 Report your situation to your local authority’s environmental health department, which can give you advice and take enforcement action if necessary.

You may also take legal action against your landlord for disrepair only if s/he knows about it or should have known about it.3O’Brien v Robinson [1973] AC 912 It is best to tell your landlord in writing (keeping copies) about the disrepair so that there can be no dispute about whether notice has been given.

Your rights are set out in the Landlord and Tenant Act 1985 or the Housing (Scotland) Act 1987 and the Housing (Scotland) Act 2006 as amended. (These provisions do not apply to tenancies for a fixed period of seven years or more.)

 

1     Ravenseft Properties Ltd v Davstone Holdings Ltd [1979] 1 All ER 929 »

2     See Environmental Protection Act 1990; Public Health Act 1936 »

3     O’Brien v Robinson [1973] AC 912 »

Structure and exterior

Your landlord must keep in repair ‘the structure and exterior of the dwelling-house (including drains, gutters and external pipes)’.1s11(1)(a) LTA 1985; Sch 10 para 3(1)(a) H(S)A 1987 This includes walls, roofs, windows and doors. If these are not kept in good repair, a house can become damp and hard to heat. In Scotland, the property must not be ‘below tolerable standard’ (see here).

 

1     s11(1)(a) LTA 1985; Sch 10 para 3(1)(a) H(S)A 1987 »

Installations for heating and for the supply of gas and electricity

Your landlord must keep in repair and proper working order – either directly or indirectly1Niazi Services Ltd v Van der Loo [2004] All ER (D) 139 CA – installations for space heating (ie, central heating, gas and electric fires), for heating water and for the supply of gas and electricity.2s11(1)(b) and (c) LTA 1985; Sch 10 para 3(1)(b) H(S)A 1987; Niazi Services Ltd v Van der Loo [2004] All ER (D) 139 CA This does not include fittings or appliances making use of the supply – ie, wiring and pipes are included but not cookers or refrigerators. For tenancies which started after 15 January 1989 (2 January 1989 in Scotland), a central heating boiler in the basement of a block of flats would normally come within the repairing obligation.3s11(1A) LTA 1985; Sch 10 para 3(1A) H(S)A 1987 For the supply of gas and electricity, an installation is considered in proper working order if it is able to function under the conditions of supply which it is reasonable to anticipate.4O’Connor v Old Etonians Housing Association Ltd [2002] EWCA Civ 150

What you can do if your landlord does not keep the property in good repair?

If your landlord does not keep the structure, etc in good repair, you have two options.

1. You can bring an action for damages and for a court order requiring your landlord to carry out the repair. Damages are calculated by assessing how much the value of the premises to you has been reduced so as to put you, as far as possible, in the same position as if there had been no breach.5Calabar Properties v Stitcher [1984] 1 WLR 287 This may involve calculating the costs of alternative accommodation, redecoration, eating out, using public baths or launderettes, together with an amount for discomfort and inconvenience arising from the disrepair. Keep a record, as far as possible, of all expenses. Most claims are made in the County Court or, in Scotland, the sheriff court. You will need the help of a solicitor. In Scotland, you can take your case to the Housing and Property Chamber.

2. In some cases, it is easier to do the repair work yourself and recover the costs by withholding rent to the same value. Always write to your landlord to warn her/him of what you are doing. You cannot recover the costs unless the works fall within your landlord’s repairing obligations, so you must give her/him an opportunity to object or comment. Send estimates for the cost of the work to your landlord and give her/him time to comment on what is being suggested – eg, 21 days. After the work has been done, write to your landlord to warn that, unless s/he pays the costs, rent to the same value will be withheld. These costs are a ‘set-off’ against rent due and are not treated by a court as rent arrears, provided the court agrees that the costs were reasonable.6Lee-Parker v Izzett [1971] 1 WLR 1688; British Anzani (Felixstowe) Ltd v International Marine Management (UK) Ltd [1980] QB 137 The consequences of getting this procedure wrong can be serious, so get legal advice. Note that in Scotland, this way of retaining your rent is not available if you are a statutory tenant.

 

 

1     Niazi Services Ltd v Van der Loo [2004] All ER (D) 139 CA »

2     s11(1)(b) and (c) LTA 1985; Sch 10 para 3(1)(b) H(S)A 1987; Niazi Services Ltd v Van der Loo [2004] All ER (D) 139 CA »

3     s11(1A) LTA 1985; Sch 10 para 3(1A) H(S)A 1987 »

4     O’Connor v Old Etonians Housing Association Ltd [2002] EWCA Civ 150 »

5     Calabar Properties v Stitcher [1984] 1 WLR 287 »

6     Lee-Parker v Izzett [1971] 1 WLR 1688; British Anzani (Felixstowe) Ltd v International Marine Management (UK) Ltd [1980] QB 137 »