What is repair?

The standard of repair imposed is not high. [1] At common law the house must be reasonably fit for people to live in. It is not up to that standard if by living in it, the occupier risks personal injury to life and limb or damage to her/his health. [2] Examples of disrepair in the past have included defective drains that led to illness, [3] a cracked pane of glass, [4] or a broken sashcord. [5]

The statutory obligations as regards repair are more specific. There is an implied provision that the landlord will 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. [6]

'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 determining whether a house will be deemed unfit for human habitation regard will be had to local building regulations.

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.

What is or is not a repair is subject to continual interpretation by the courts. As most case law has been in terms of various rent acts or tax statutes, it should be looked at with caution. Ultimately whether something is a repair will depend on the facts and circumstances of the individual case.

Often whether something constitutes a repair has been defined by distinguishing it from an improvement, so it has been held that the replacement of something obsolete or in disrepair by its modern equivalent could be a repair. One case involved the replacement of a drainage system to a block of flats and the replacement was termed a repair rather than an improvement. [7]

Another case that developed the law in this area, concerned a block of flats that had been built without expansion joints (as these did not exist at the time of construction) and consequently the building's stone cladding threatened to fall off. By the time of the case expansion joints had been invented. The court decided that to use expansion joints to remedy the situation would be a repair and not an improvement, notwithstanding that the use of such joints would result in a net improvement to the building's structure. [8]

Broadly, it is a matter of degree whether a particular work is deemed to be an improvement or a repair. [9] In one case it was held that the replacement of a rotted floor was an improvement rather than a repair even though this was following a local authority nuisance order. The fact that the works put the house into a tenantable and habitable state was not conclusive. [10]

Most cases have depended on whether something is a repair or an improvement. It has been held that the replacement of something obsolete or in disrepair by its modern equivalent could be a repair, but the provision of something new for the benefit of the occupier would generally be an improvement. [11]

Repair does cover redecoration where the need for redecoration is a result of the repair work. It has been held that the duty to repair includes the duty to put right damage arising from the lack of repair, including reinstating decoration. [12] This has been give statutory force for Scottish secure tenants. [13]

Whether or not works are a repair or an improvement is not such a crucial issue if the tenant can rely on the landlord's obligation to provide a house fit for habitation at the commencement of the tenancy and for the during of the tenancy.

The landlord of Scottish secure tenancies has a right to enter premises to view their condition and state of repair at reasonable times of the day, on giving  the tenant 24 hours' notice in writing. [14] Assured tenants are subject to a similar provision allowing a right of access to landlords at reasonable times to execute repairs they are entitled to carry out. [15] This right of entry is limited to such entry and occupation as are strictly necessary to do the work. It does not give the landlord exclusive occupation or access to all parts of the house at the same time unless this is essential.

A private rented sector 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. [16]

There is no right of access to do improvements unless this is specifically allowed for in the contract. The landlord must therefore obtain the consent of the tenant before any improvements can be done. However in situations where substantial works are intended and it is necessary for the tenant to move out in order for the work to be done there may be a ground for possession.

For more information, please see the section on disrepair- rights and duties.