Action not involving the courts

Not all remedies for dealing with landlords need to involve court action.

This content applies to Scotland

Termination of tenancy agreement

The obvious solution in serious cases of dampness and disrepair is simply to treat the contract of lease as having been terminated by the landlord's inaction over repairs and to leave the property. The legal term for this is rescission. It is not a solution that is practical for most tenants, but could be useful if someone is locked into a fixed term lease, for example a short assured tenancy. The short assured tenant would be able to leave the tenancy without being liable for the rest of the rent in terms of the lease.

This remedy is only available in serious cases of disrepair when the landlord has failed to fix the problem in a reasonable time.

It is possible to treat the tenancy as ended, leave the house and raise an action for breach of contract and damages later.

Withholding rent

Essentially, tenants must be advised of the substantial risks and the possibility that they will lose their home before they decide to withhold rent. Withholding rent may be an appropriate course of action for some tenants but it must be an informed decision made in relation to particular cases.

Where the landlord is in material breach of her/his repairing obligations, the tenant has the right to withhold rent until the repairs are carried out. [1] Tenants should be able to demonstrate that rent is being held separately and not being spent, as once repairs are completed the tenant is under a duty to pay the withheld rent after deduction of any claims that s/he may have in respect of abatement of rent or for damages. Extreme caution should be exercised in suggesting that clients withhold rent. The right to withhold may be expressly excluded in the lease. For local authority tenants, withholding rent is not possible in respect of any part of the rent that is being met by Housing Benefit.

The landlord may decide to treat the withheld rent as arrears and raise an action for eviction. Thus it is important to put the rent aside rather than spend it. If the tenant does not do this then the landlord may be successful in her/his action.

See the page Withholding rent for more detailed discussion on the potential negative consequences.

Also see section on preventing eviction in rent arrears cases.

Specific remedies for private tenants

Private tenants who feel that their landlord is not meeting her/his duty to carry out repairs and not maintaining the property to the repairing standard can make an application to the First-tier Tribunal for Scotland (Housing and Property Chamber). [2] If the Tribunal finds that the landlord is not meeting her/his repairing duty, it will have to issue a repairing standard enforcement order, which will require the landlord to carry out the necessary work. For more information, see the section on the repairing standard.

Specific rights for Scottish secure tenants

Scottish secure tenants have the right to have certain repairs completed within a specific length of time. [3] The repairs to which this scheme applies are called 'qualifying repairs', cost up to a maximum of £350 and include problems such as blocked sinks and unsafe electrical fittings. If the landlord does not carry out the repairs within the required time then another contractor from a set list can be hired and the tenant can claim compensation. Depending on the type of qualifying repair, it has to be carried out within one, three or seven days. [4] This is of limited value as the maximum amount of compensation that can be claimed is £100.

Rent applied to repairs

The tenant may decide to carry out the repairs her/himself and use the rent to pay for them. As with all other remedies, the landlord must have been told of the need for repair and have been given a reasonable time to carry it out. The tenant should also warn the landlord that s/he intends to use this remedy, and treat the repair as if it were an insurance claim by getting two quotes and instructing the cheaper one. All correspondence and receipts should be kept in case the landlord decides to treat the rent deduction as rent arrears.

Reduction in fair rent

It is possible for a registered 'fair rent' to be reconsidered within the three year period if there has been a change in circumstances. Such a change includes a change in the condition of the property. The tenant can apply to the First-tier Tribunal for Scotland (Housing and Property Chamber) for a redetermination. For more information, please see the section on fair rents.

Abatement of rent

The right to abatement of rent is related to the withholding of rent. There is a right to an abatement of rent when the tenant has not been able to use either all or some of the house due to the disrepair. How much of the rent is abated will depend on how much of the house is uninhabitable: if no part of the house is inhabitable, 100 per cent of the rent may be abated, but if only part of the house is unusable then the rent will be reduced proportionally. Abatement of rent is often one of the heads of claim in an action for damages.

The Environmental Protection Act 1990

The Environmental Protection Act requires a local authority to inspect its area for statutory nuisances and take reasonable steps to investigate any complaints of statutory nuisance it receives. Tenants and other occupiers can also take action under the Act by obtaining an abatement order in the sheriff court. For further information, please see the section on the Environmental Protection Act 1990.

Last updated: 10 February 2020

Footnotes

  • [1]

    Rankine, Leases, p.329

  • [2]

    s.22(1) Housing (Scotland) Act 2006

  • [3]

    s.27(2) Housing (Scotland) Act 2001 and the Scottish Secure Tenants (Right to Repair) Regulations 2002 SSI 2002/316

  • [4]

    art.10(1) and sch. The Scottish Secure Tenants (Right to Repair) Regulations 2002 SSI 2002/316