The private rental landscape is, in many ways, somewhat tighter in Scotland than it is south of the border. One of the latest developments to affect landlords in Scotland is an update to the Repairing Standard, which is contained in the Housing (Scotland) Act 2006 (the 2006 Act).
The Repairing Standard is aimed at ensuring that private rental homes, as with all homes in Scotland, meet the Tolerable Standard (as set out in sections 85-87 of the Housing (Scotland) Act 1987). Any accommodation that falls beneath the Tolerable Standard is considered unfit for human habitation. As such, the Tolerable Standard is a condemnatory standard, and homes that do not meet it cannot be rented out, may be difficult to sell and almost certainly fetch lower than average sold property prices.
The most recent update to the Repairing Standard took place on 1 March 2019 but gave landlords a considerable period - 5 years - within which to ensure that their properties met that new standard. As that period is due to expire on 1 March 2024, we take a look at what landlords should be doing in order to comply - in the relatively unlikely case that they have not already done so. This is also valuable information for tenants, who should ensure they familiarise themselves with the standards they are legally entitled to expect from any rental property.
New measures that apply as of 1 March 2024:
Safe kitchens
It is a requirement for all privately rented homes to have safely accessible food storage and food preparation areas.
Fixed heating systems
There was already a requirement that private rented homes must have heating systems that were in a reasonable state of repair and in correct working order. However, the updated Repairing Standard requires all private rented homes to have a fixed heating system. Although installing fixed heating systems can be expensive, it's a cost that's frequently recouped when selling, as sold property prices tend to be higher for homes with proper central heating.
Safe access to common parts
Landlords already had a duty to ensure that the property's structure and exterior were in a reasonable state of repair. Under the amended Repairing Standard, they also have a duty to ensure that a tenant living in a property that is a flat in a tenement building has safe access to, and use of, any common parts of the building. For example, this might include a common close.
Consent to work on common parts
This is an acknowledgement of the difficulties potentially faced by a landlord who owns a property in a building in which the other properties are under separate ownership. An amendment to the 2006 Act makes clear that a rental property that is a flat in a tenement building will not fail the Repairing Standard if work necessary to meet that standard is not carried out because the other owners refuse consent to carry out their share of the work or to permit access to relevant parts of the building.
However, landlords are not entitled to use the need for majority consent among tenement owners to avoid their obligations under the 2006 Act. In other words, landlords are expected to support any reasonable proposal aimed at facilitating work necessary to ensure the property meets the Repairing Standard.
Safe and secure common doors
Landlords already have a duty to ensure fire safety in their properties. This duty is now extended to specify that all common doors must be fitted with appropriate locks that allow the door to be opened from the inside without a key. This is clearly to ensure that the locks do not prevent anyone from leaving the building in the event of a fire.
Residual current devices
Landlords already have a duty to ensure that all electrical installations in a rental property are in good working order and in a reasonable state of repair. Under the amended Repairing Standard, all electrical installations in rental properties must include a residual current device. This is a safety device that breaks the circuit in the event of a fault, and so reduces the risk of fire or electrocution.
Other fuels
Landlords of private rented properties were already subject to a duty to ensure that installations supplying gas and electricity were in good working order and a reasonable state of repair. Under the amended Repairing Standard, this duty is now extended to other sources of fuel.
What happens if a landlord doesn't meet the Repairing Standard?
Local authorities have a duty to maintain a register of private landlords. Only landlords who have been assessed as fit and proper can be entered onto the register. Although the assessment as to whether or not a landlord is "fit and proper" doesn't appear to involve an automatic assessment of their properties, it must take into account any prior evidence of breaches of the Repairing Standard. Landlords who do not meet the Standard must not be included on the register.
If a local authority (or, indeed, a tenant) believes that a landlord is not meeting the Repairing Standard, they can apply to the First-tier Tribunal for Scotland (Housing and Property Chamber). If the tribunal decides that the landlord has not complied with the Repairing Standard, it can order the landlord to carry out the necessary repairs. The tribunal also has enforcement powers it can exercise if the landlord does not do so.
Potential enforcement actions include: (1) referring the matter to the local authority, which can then decide to carry out the necessary work itself and recover the cost from the landlord; and (2) issuing a Rent Relief Order, which will restrict the rent payable until the necessary works have been carried out to a satisfactory standard.
When should a landlord check a property complies with the Repairing Standard?
Landlords have an ongoing duty to meet the Repairing Standard. This includes:
(1) a duty to conduct a pre-tenancy inspection to identify any necessary work and an ensuing duty to ensure it's carried out to the required standard; and
(2) a duty to conduct any repairs that become necessary during the life of a tenancy - although this duty applies only if the tenant notifies the landlord that repairs are needed or the landlord otherwise becomes aware that they are necessary.
Overall, meeting the Repairing Standard is not an especially onerous duty, especially in a well-managed and previously well-maintained property. The new amendments to the Standard may help discourage less conscientious individuals from becoming landlords or incentivise them to leave the sector.
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