Changes to the repairing standard for private lets: are you ready?

  • Insight

15 April 2019

A number of changes are being made to the repairing standard, which currently applies to certain types of private residential let.

Some of the changes alter what is included in the repairing standard. Others will remove some exclusions from it, with the effect that some agricultural tenancies will be affected. Upgrading of a property by the landlord may be required. Implementation of the changes will take place over several years, but in order to be prepared – and to have the opportunity to spread any costs – it is good to take stock now.

What is the ‘repairing standard’?

The repairing standard is a set of criteria about the minimum acceptable state of rented houses. In broad terms, the repairing standard is currently met if:

• the house is wind and water tight and also otherwise reasonably fit for human habitation;

• the house has a structure and an exterior in proper working order in a reasonable state of repair;

• any gas, electricity, water, heating (including heating of water), and sanitary installations are in proper working order in a reasonable state of repair;

• any fixtures, fittings and appliances provided by the landlord under the tenancy are in a reasonable state of repair and in proper working order;

• any furnishings provided by the landlord under the tenancy are capable of being used safely for the purpose for which they are designed;

• the house has a satisfactory fire detection and warning system (this will be part of the tolerable standard from 1 February 2021);

• the house has a satisfactory carbon monoxide warning system (this will be part of the tolerable standard from 1 February 2021); and

• the house meets the tolerable standard. (This requirement was added on 1 March 2019.)

It is the landlord’s responsibility to make sure that each property meets the standard.

What is the tolerable standard?

The tolerable standard is a lower standard of repair. It applies to every house (or flat, etc) in Scotland. Properties that are exempt from the repairing standard must still meet the tolerable standard. Any house which falls short is deemed not fit for human habitation.

Exclusions for certain properties on agricultural land: set to change

Some types of rented property are excluded from the repairing standard. These include houses on land leased under the following types of tenancy:

• 1991 Act tenancies;

• short limited duration tenancies;

• limited duration tenancies;

• modern limited duration tenancies; and,

• repairing tenancies (when they become available).

These exclusions only apply where the occupant of the house is the tenant under the above tenancy (not when the house is separately let to a sub-tenant).

Also currently on the list of exclusions are:

• the tenancy of a house on a croft; and,

• the tenancy of a house on a small landholding.

Rented houses which are excluded from the repairing standard must meet the tolerable standard.

A Summary of the Changes

Changes from 1 March 2019

• The tolerable standard is included in the repairing standard (as set out above).

This is not a change to the standard of housing required. The purpose of this change is so that breaches of the tolerable standard can be brought before the First-tier Tribunal by a private tenant.

• The legislation has been clarified in relation to flats. An exception is made where the failure to meet the repairing standard relates to something which requires the consent of a majority of owners, but on a vote a majority decision has not been reached.

• Another clarification relates to holiday lets. Where the let is for less than 31 days, the repairing standard does not apply. (Other rules on non-domestic residential accommodation do apply.)

Changes from 1 February 2021

• The requirement to have satisfactory fire detection alarms and carbon monoxide alarms will be added to the tolerable standard. This will not make any difference to private lets already subject to the repairing standard. But it will make a difference to houses land let on an agricultural tenancy, croft, or smallholding, before the date when the repairing standard will apply to those tenancies (on 28 March 2027 – see below).

Changes from 1 March 2024

• A requirement to have safely accessible food storage and preparation space will be added to the repairing standard. The Scottish Government will produce guidance on this.

• The existing requirement in the repairing standard that heating installations are in a reasonable state of repair and proper working order will be amended to a requirement that there is a fixed heating system. The Scottish Government will also produce guidance on this.

• Specifically for flats, an amendment to the repairing standard will mean that the tenant must be able to access safely any common parts (such as the common close and stair) and be able to use the common parts.

• Any common doors will have to be secure and fitted with locks which can be opened from the inside without a key.

• All electricity supply installations will have to include a residual current device (which breaks the circuit when there is a fault). Existing guidance on electrical safety will be revised by the Scottish Government to cover this change to the repairing standard.

• “Other fuels” will be added to the requirement in the repairing standard that electricity and gas installations are in proper working order and a reasonable state of repair.

• New guidance on lead pipes will apply from this date (but will be published before it). The guidance is expected to specify that (i) either no lead pipes are used between the boundary stopcock and the kitchen taps, or if the absence of lead pipes cannot be confirmed (ii) the quality of the water must be tested.

Changes from 28 March 2027

Houses on land under the following types of tenure will be subject to the repairing standard (unless a further exception applies: see below, “agricultural leases”):

• 1991 Act tenancies;

• short limited duration tenancies (“SLDTs”);

• limited duration tenancies (“LDTs”);

• modern limited duration tenancies (“MLDTs”);

• repairing tenancies (not yet available);

• the tenancy of a house on a croft; and,

• the tenancy of a house on a small landholding.

Although this date is around eight years away, it would be prudent to consider what – if anything – needs to be done now to bring properties which will be affected up to standard.

Some Particular Issues

Crofts

In many cases, the landlord of a croft does not provide the house, the crofter does so. If that has happened, will the landlord be under a duty to make sure the house meets the repairing standard? The repairing standard applies to a “tenancy of a house” but the tenancy in this case was of bare land. It may be that forthcoming Scottish Government guidance will provide clarity on this point. In any event, the tolerable standard will apply to the house.

If the housebuilding crofter quits the croft and the croft is let to another, it will be the landlord’s responsibility to make sure that the house meets the repairing standard.

Agricultural leases

At present, the repairing standard does not apply to a house occupied by a tenant who holds on an agricultural lease where the house is part of the agricultural tenancy. When the agricultural exemptions are removed on 28 March 2027, such houses will be subject to the repairing standard.

Many newer agricultural leases include an obligation on the tenant to maintain the house. On 28 March 2027 this responsibility will, in principle, be on the landlord, no matter what it says in the lease. However, there is currently an exception to this rule for certain leases of longer duration. Whether the exception applies needs to be looked at on an individual-case basis as finding the answer depends on several factors.

For any leases entered into from now on, consideration should be given to whether the landlord will have to meet the repairing standard in due course. Provision needs to be made for any access, or other, rights which may be required in order for the landlord to meet the duty. Existing leases may not have the required rights, but as long as the landlord takes reasonable steps to acquire those rights (and is unsuccessful) the obligation to meet any affected aspects of the repairing standard is not applicable.

There is some scope for the landlord’s duty to meet the repairing standard to be modified if both parties agree, but only where a successful application to that effect is made to the First-tier Tribunal.

Sub-tenants

Where there are other houses on the land covered by the agricultural tenancy which are sub-let by the agricultural tenant, in many cases those other houses will be subject to the repairing standard (depending on the precise nature of the sub-let). The responsibility to meet the repairing standard in respect of the sub-let houses falls on the agricultural tenant (who is the landlord of the sub-tenants) and probably also on the owner of the land. None of the amendments will change this position.

What do I do now?

Consider all the premises used for human habitation that you own.

• Whether or not these are rented out, all will need to have satisfactory fire detection alarms and carbon monoxide alarms by 1 February 2021. There is guidance available from the Scottish Government. Note that there are two sets of guidance: one for now until 31 January 2021; and one for 1 February 2021 onwards. According to the legislation, regard should be had to this guidance in understanding how to comply with the repairing standard. That means that it has greater force than being merely a suggestion, and should be followed closely.

• For premises which are rented out, and currently subject to the repairing standard, you will need to make sure that each premises meets those changes to the repairing standard which will come into
force on 1 March 2024.

• For premises which are included in an agricultural tenancy, including a croft or small landholding, and not currently subject to the repairing standard, these must meet the repairing standard by 28 March 2027. The repairing standard on 28 March 2027 will, of course, include the changes to be made to it on 1 March 2024.

Given the amount of time still to pass between now and some of these amendments coming into force, it is possible that further amendments will be made, but there is no indication that the Government intends to do this at present.

If you have any questions or would like further information, please contact Adèle Nicol.

For more information on this topic, contact