March 2019 – The Private Rented Sector – The “Repairing Standard” Evolves

Author: Mitchells Roberton
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  • If you rent out a property as a private landlord it’s your duty to make sure the property meets the “repairing standard”.
  • New legislation came into force on 1st March 2019 making changes in relation to the repairing standard. (The trio of measures in full is: the Housing (Scotland) Act 1987 (Tolerable Standard) (Extension of Criteria) Order 2019/8; the Housing (Scotland) Act 2006 (Modification of the Repairing Standard) Regulations 2019/61; and the Housing (Scotland) Act 2006 (Supplemental Provision) Order 2019/62).)
  • Some of the changes will take time to put in place and involve expense. So, the changes don’t all come in at once: some are effective from 1st March 2019, some from 1st February 2021; some from 1st March 2024; and some not until 28th March 2027.
  • The changes that have effect straight away are the most straightforward and largely clarificatory rather than innovatory. This Update will focus only on them, given that they are already in force. A later Update may look at the others. First, however, there is a brief recap on what the “repairing standard” is in order to give context to the changes made with effect from 1st March.

WHAT IS THE REPAIRING STANDARD?

The “repairing standard” is the basic level of repair that all private rented properties must meet. A home meets the repairing standard if it is:

  • wind and watertight;
  • the structure and exterior (like the walls and roof) are in a reasonable condition;
  • the installations for water, gas, electricity, sanitation and heating are in a reasonable state of repair and working order;
  • any fixtures, fittings or appliances provided by the landlord (like carpets, light fittings and household equipment) are in a reasonable state of repair;
  • any furnishings provided by the landlord can be used safely for the purpose they were designed;
  • it’s fitted with suitable fire detection devices – at least one smoke alarm in the living room, one in every hall or landing and a heat alarm in every kitchen;
  • it’s fitted with a carbon monoxide detector in any room with a carbon fuelled appliance (such as a heater or boiler, but not a cooker) or there is a flue from such an appliance; and
  • electrical safety inspections are carried out by a qualified electrician at least once every five years.

Other responsibilities 

  • In flats, the repairing standard includes any common parts of the building if a tenant is adversely affected by something that is in disrepair or not in proper working order.
  • Landlords also have responsibilities for gas safety and further responsibilities if the house is a “house in multiple occupation”.

THE CHANGES WITH EFFECT FROM 1st MARCH 2019 

The common parts 

  • The repairing standard is set out in the Housing (Scotland) Act 2006 (“the 2006 Act”). This is now modified (by the  2019/62 Order) so as to make it clear that where a property which includes common parts (e.g. a flat in a tenement) can’t be repaired because the majority of owners don’t consent to the repairs a landlord won’t be taken to be failing to meet the repairing standard.

Holiday lets excluded 

  • Under the 2006 Act there are a few forms of tenancy to which the repairing standard does not apply. Those limited exceptions now include:

“a tenancy of a house which does not exceed 31 days where the purpose of the tenancy is to confer on the tenant the right to occupy the house for a holiday.”

  • As the Policy Note (to the 2019/61 Order) says:

“Currently these [i.e. holiday lets] would usually be considered occupancy arrangements [rather than tenancies and so excluded from the repairing standard anyway] … but it is unclear in some cases whether a let of this sort would be considered a tenancy or an occupancy arrangement.”

  • In other words, this adjustment makes it clear that no short term holiday lets are subject to the repairing standard obligations.

Tolerable standard 

  • In relation to sub-standard housing it is the duty of every local authority to make sure that all houses in their district which do not meet the tolerable standard are closed, demolished or brought up to the tolerable standard (section 86 Housing (Scotland) Act 1987). As that suggests the bar for what qualifies as “tolerable” is not that high. Up until now the “repairing standard” did not expressly include the requirement that the house in question also met the tolerable standard. But it does now. This is no great innovation but simply confirmation and clarification of what, in practice, was already taken to be the case. 

Note: This material is for information purposes only and does not constitute any form of advice or recommendation by us. You should not rely upon it in making any decisions or taking or refraining from taking any action. If you would like us to advise you on any of the matters covered in this material, please contact Euan David: email efd@mitchells-roberton.co.uk

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