Statutory rights and responsibilities

Even if the landlord manages to exclude her/his common law duties,[1] s/he cannot exclude her/his statutory duties under the Housing (Scotland) Act 2001 and the Housing (Scotland) Act 2006.

In some ways the statutory provisions mirror the common law duties. A landlord has to ensure that the house is reasonably fit for human habitation. Landlords are explicitly required to ensure that the house is wind and watertight and is kept that way during the tenancy. [2]

What this actually means has been considered in a number of cases. In Morgan v Liverpool Corporation [3] it was stated that '(if) the state of repair of a house is such that by ordinary use damage may be caused to the occupier, either in respect of personal injury to life or limb or injury to health, then the house is not in all respects reasonably fit for human habitation.' [4]

The local authority can take action where any residential dwelling fails to meet the tolerable standard.

The landlord has an obligation to keep in repair the structure and exterior of the house, including drains, gutters and external pipes and keep in repair and working order the installations in the house. [5]

In determining the standards to be applied that would meet the repairing obligation, private landlords can take account of the age, character, prospective life of the house and have regard to the area in which the house is situated. [6]

'Structure' and 'exterior' are given their ordinary meaning, in that the structure is what keeps the building standing, and the exterior is what can be seen from the outside. [7]

'Installations' are defined as those for the supply of water, gas and electricity and for sanitation including basins, sinks, baths etc, (but not fixtures, fittings and appliances for using the water/gas/electricity), and those for space heating or heating water.

These factors simply provide the basis for ensuring habitability. There is no definitive list of repairs available to tenants. But in considering whether a house falls short of the standard, regard will be had to whether it falls short of local building regulations by reason of disrepair or sanitary defects. [8]

It should be noted that the landlord is not in breach of her/his duty to repair until the defect has been brought to her/his attention and s/he has failed to remedy it within a reasonable period of time.[9]

The Housing (Scotland) Act 2006 has introduced a repairing standard that all properties let in the private sector must meet. This has been in force since 3 September 2007. See the section on the repairing standard for more information on landlord's duties and tenant's rights.

The right to repair scheme made it a requirement for social landlords to have essential repairs carried out within a maximum time and for compensation, to be paid to the tenant, where this does not occur.  Landlords must inform tenants in writing at least once a year of the regulations in relation to essential repairs. However, if the repair cannot be carried out within the timescale because of exceptional circumstances beyond the landlord's, or the contractor's, control, the timescale will not apply the tenant must be informed of this. The timescales can be found in the Schedule in the 2002 regulations. [10]

Where the house being let is part of building, for example a flat in a tenement, the implied repairs provisions of the Housing (Scotland) Act 1987 apply to any part of that building, or to any of the installations serving the house in which the tenant has an interest and which affect her/his enjoyment of the house or the common parts. [11]

The landlord is not obliged to:

• carry out repairs which are needed because of the tenant's own negligence

• rebuild premises which are destroyed or damaged, for example by an 'act of god' such as freak weather conditions

• repair or maintain anything that the tenant is entitled to remove. [12]

Given the statutory obligations, these exclusions have little practical impact for tenants; however they may have more importance in actions at the instance of a non-tenant (for example, a family member) who cannot rely on the terms of the lease. It should be noted that these provisions reflect some of the exclusions at common law of the landlord's duty to repair.

Other common law exclusions are:

• where the tenant has remained in the property knowing that there is a defect which makes the house less than habitable or tenantable or wind and watertight, when any injury sustained will be the tenant's responsibility, [13] unless s/he has stayed because the landlord told her/him it was safe [14]or that the repairs would be carried out immediately [15]

• if the damage is a result of a defect which was obvious at the start of the lease [16]

• where the damage was caused by a third party like a vandal, unless the landlord had reason to believe that such damage might happen and s/he was able to prevent it (this is different from the statutory regime where damage by third parties is not excluded, so the landlord remains liable to repair damage caused by vandals). [17]

In determining whether a house is fit for human habitation local building regulations are looked at to see if the house falls short of their provisions by reasons of disrepair or sanitary defects. [18]

The building regulations in Scotland change approximately every 10 years. That change usually involves an improvement in the minimum standard. Although the statutory requirement is for courts to have regard to the current building regulations this does not mean that older properties have to be upgraded every time the regulations change. It has been held that 'what account the court takes of them will depend on the circumstances of the particular case, which will include the age of the building'. [19]

The Occupiers' Liability (Scotland) Act 1960 places a duty on the landlord to take reasonable care to avoid any risk to the health and safety of anybody living in the property over which s/he has control. This duty to take care extends in effect to a non-tenant, like a visitor, who is injured as a result of a breach of the landlord's repairing obligation, enabling them to raise an action against the landlord for negligence. [20] Even someone who is not legitimately on the premises (such as a 'trespasser') may be owed a duty of care by the landlord.

The tenant has an implied obligation to the landlord to give access for repairs. The landlord has a right to enter premises to view their condition and state of repair at reasonable times of the day on giving 24 hours' notice in writing. [21] Scottish secure tenants must also allow the landlord the same access in order to carry out repairs that will keep the property wind and watertight and reasonably fit for human habitation. [22]

The landlord of a property to which the repairing standard applies has specific rights to enter for the purpose of—

• viewing its state and condition for the purpose of determining whether the house meets the repairing standard, or

• carrying out any work necessary to comply with the duty in section 14(1)(b) of the Housing (Scotland) Act 2006 or a repairing standard enforcement order. [23]

The landlord can apply to the First-tier Tribunal for Scotland (Housing and Property Chamber) for assistance in exercising his right of entry if he is unable to gain access to the property. The Housing and Property Chamber can assist in arranging a suitable date for access and where required fix a date for access if a tenant and landlord cannot agree a date. [24]

The tenant also has certain duties as an occupier of the property under the Occupiers Liability (Scotland) Act 1960 to any subtenants or visitors to take reasonable care to avoid any risk to the health and safety of any person in the property.