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).