Common law rights and responsibilities

Common law rights and responsibilities derive from legal principles and judicial precedents laid down by judges in decisions over the centuries.

This content applies to Scotland

Common law rights

Common law is usually called case law. This is because this type of law has been developed through the decisions made by the courts. Courts are bound to follow the law laid down by a superior court in an earlier case. Common law can also be said to be derived from the 'institutional writers'. For more information, please see the guide to using case law in the courts and legal action section.

Habitable and tenantable condition

The landlord is obliged to provide and maintain the subjects of the tenancy in a habitable and tenantable condition, [1] and to ensure that the subjects of the tenancy are provided and maintained in a wind and watertight condition.

What is a habitable and tenantable house will depend on the circumstances in each case, but what the duty broadly means is that the landlord will have to:

  • carry out a reasonably careful inspection of the property immediately before the start of the lease to check that it is in a habitable and tenantable condition, noting any particular defects which may have an effect on the incoming tenant [2] (in other words, that it will basically be safe and fit to live in)

  • maintain the property in a habitable condition during the tenancy (and it should be noted that disrepair must be reported to the landlord who must then fix the defect within a reasonable period of time). [3]

Habitability

The habitability duty has been developed over the years in a series of cases and can now be said to provide what could be described as sub-duties to:

  • provide a house which has appropriate ventilation (as a house which cannot be properly ventilated and as a result suffers from dampness may not be habitable) [4]

  • provide a house which has adequate insulation [5]

  • provide a house that allows any prospective tenant to heat the house at a reasonable cost. Also, the ventilation, insultation and heating system of the house should allow prospective tenants to be able to live in it in reasonable comfort and free of condensation, damp and mould. [6] A house suffering from cold and damp which can only be made habitable by incurring huge heating bills cannot be said to be habitable. [7]

Tenant responsibilities

The tenant has to use the subjects with reasonable care. This means that any damage caused by the tenant's negligence in this duty will have to be made good by her/him. The duty would include such things as turning off the water if going away in winter. [8] It does not cover fair 'wear and tear', as these are the landlord's responsibility.

Last updated: 10 February 2020

Footnotes

  • [1]

    Erskine's Institutes II/6/43; Lamb v Glasgow District Council 1978 SLT (Notes) 64

  • [2]

    Lamb v Glasgow District Council 1978 SLT (Notes) 64

  • [3]

    Woolfson v Forrester 1910 SC 675; McGreal v Wake (1984) 128 SJ 116; 13 HLR 107 (CA)

  • [4]

    Edinburgh District Council v Davis 1984 SCOLAG 86 at page 88

  • [5]

    Gunn v Glasgow District Council 1992 GWD 1874; 1992 SCLR (Notes) 1018; SCOLAG Jan. 1993

  • [6]

    Fyfe v Scottish Homes 1995 SCLR 209

  • [7]

    McCarthy v Glasgow District Council 1988 SCOLAG 121

  • [8]

    Mickel v M'Coard 1913 SC 896; 1913 1 SLT 463, where a tenant leaving a house empty in winter without turning off the water or telling the landlord was held liable for the damage caused by burst pipes.