Important new changes for residential letting
The Housing (Scotland) Act 2006 (“the 2006 Act”) is intended to address, through encouragement and when necessary enforcement, problems of condition and quality in private sector housing; both owner occupied and rented. However, at present, not all sections of the 2006 Act are fully in force.
This note considers the major changes applying to the private rented sector.
With effect from Monday 3rd September 2007 the new “repairing standard” will be introduced setting out the standards applying to the majority of private residential tenancies.
Housing standards
Part 1 of the Act deals with housing standards including amendment to the existing “tolerable standard” and the introduction of the concept of “the repairing standard”.
The tolerable standard
This was introduced by the Housing (Scotland) Act 1969 and provided that a house is within the tolerable standard if:
-
it is structurally stable;
-
is substantially free from rising or penetrating damp;
-
has adequate provision for natural and artificial lighting, ventilation and heating;
-
has an adequate piped supply of water;
-
has a water closet and a fixed bath or shower. This definition was incorporated in the Housing (Scotland) Act 1987.
A house will not be fit for human habitation if it does not meet the tolerable standard and will therefore fail to meet the new “repairing standard“.
Under the 2006 Act in addition to the requirements of the tolerable standard as previously defined, a property must have satisfactory thermal insulation and, where the property is supplied with electricity, that supply must comply with the relevant requirements with regard to the electrical installation. “Electrical installation“ is defined as the electrical wiring and associated components and fittings, but excludes equipment and appliances (these are dealt with elsewhere in the 2006 Act). “The relevant requirements” are that the electrical installation is adequate and safe to use.
No definition is given of “satisfactory thermal insulation”. In older properties this may cause difficulty. It is assumed that guidance from the Scottish Ministers may be forthcoming.
The tolerable standard now allows the inclusion of a waterless closet as well as a standard flushing water closet.
The repairing standard
The landlord’s duty to repair and maintain applies to any tenancy of a house let for the purpose of human habitation, including tied accommodation occupied by an employee, but excluding any house included in an agricultural lease and occupied by the tenant under that lease; or the tenancy of a house or a croft within the meaning of the Crofters (Scotland) Act 1993; or if outwith the crofting counties to which provisions of the Small Landholders (Scotland) Acts apply.
A house meets the repairing standard if: -
-
(a) It is wind and water tight and in all other respects reasonably fit for human habitation (i.e. it meets the tolerable standard);
-
(b) The structure and exterior of the house including drains, gutters and external pipes are in a reasonable state of repair and in proper working order;
-
(c) The installations in the house, the supply of water, gas and electricity, sanitation, space heating and water heating are in a reasonable state of repair and in proper working order;
-
(d) Any fixtures, fittings and appliances provided by the landlord are in a reasonable state of repair and in proper working order;
-
(e) Any furnishings provided by the landlord are capable of being used safely, for the purpose of which they are designed; and
-
(f) The house has satisfactory provision for detecting fires and giving warning in the event of fire or suspected fire.
In determining whether a house meets the standard of repair set out in paragraph (a) consideration has to be given to the extent to which the house, by reason of disrepair or sanitary defects, falls short of the provisions of any building regulations. So far as the standard set out in paragraph (b) consideration will be given to the age, character and prospective life of the house and the locality in which the house is situated. In relation to paragraph (f) regard is to be taken of guidance issued by Scottish Ministers which can be found in The Repairing Standard: An Advice pack for Private Landlords (see web link at the foot of the page).
From 3rd September 2007 landlords must issue, on or before the start of every new residential tenancy not falling within the excepted categories, written information about the effect of the repairing standard and the landlord’s and tenant’s rights and responsibilities. The advice pack issued by Scottish Ministers, which can be found on the Private Rented Housing Panel’s website, contains a style letter for landlords together with useful information for landlords and tenants.
The landlord must ensure that the house meets the repairing standard at the start of the tenancy and at all times during the tenancy. This duty also applies to tenancies that predate 3rd September 2007; but only where the landlord has been informed, by the tenant, or has become aware, by some other means, that repairs are required.
It is possible to contract out of the landlord’s duty to meet the repairing standard but only where a lease is for a period of not less than 3 years and may not be terminated at the option of either party within 3 years of the start of the tenancy. This mirrors exceptions found in previous legislation that excluded leases of 7 years from the implications of landlord’s obligations to maintain and repair.
It is possible to contract out of the landlord’s obligations in leases for less than 3 years with the express consent of a Sheriff provided both parties agree.
Enforcement of the repairing standard
The 2006 Act provides for the constitution of a body to be known as the Private Rented Housing Panel. This body will replace Rental Assessment Committees constituted under the Rent (Scotland) Act 1984. Rental assessment under the 1984 Act will now be known as Private Rented Housing Committees. The Private Rented Housing Panel, its president and the Private Rented Housing Committees will exercise the functions previously carried out under the 1984 Act and the Housing (Scotland) Act 1988 and will now collectively be known as The Private Rented Housing Panel (PRHP). The PRHP will continue to exercise functions in relation to rent review and control and the new functions conferred in the 2006 Act.
A tenant may apply to the PRHP for determination of whether or not a landlord has failed to comply with the repairing obligations. The application must set out the tenant’s reasons for considering the landlord has failed to comply and an application cannot be made unless the tenant has notified the landlord that work requires to be carried out. When an application is received the President of the PRHP must decide whether to refer the application to a private rented housing committee (PRHC) or reject the application. If it is referred to a PRHC, the PRHC must decide whether the landlord has complied, or not, with the repairing standard obligations.
If the PRHC decide that the landlord has failed to comply they must by order require the landlord to carry out such work as is necessary to ensure that the house meets the repairing standard. The repairing standard enforcement order must specify the period within which the work required by the order must be completed. It is the responsibility of the PRHC to decide whether the landlord has complied with the repairing standard enforcement order made by the PRHC.
Rent relief order
If the PRHC decides the landlord has failed to comply the PRHC must serve notice of failure on the local authority and decide whether or not to make a rent relief order.
A rent relief order is an order by the PRHC which reduces any rent payable on the tenancy in question by such an amount, not exceeding 90%, of the rent which would, but for the order, be payable. Such an order may be made only where the PRHC have decided that the landlord has failed to comply with a repairing standard enforcement order. The rent relief order does not affect the terms or validity of the tenancy other than by reducing the rent payable under the tenancy. The PRHC may revoke a rent relief order at any time and must do so if the repairing standard enforcement order is revoked or a certificate is granted under Section 60 of the 2006 Act in relation to the work (a certificate from the Local Authority or the PRHC as appropriate that the work has been completed).
The revocation of a rent relief order does not make the tenant liable to pay any rent which the tenant would otherwise have been due to pay. The rent relief order cannot be revoked until after the expiry of the period within which the repairing standard enforcement order requires the work to be carried out has ended.
Offences
A landlord who without reasonable excuse fails to comply with a repairing standard enforcement order commits an offence and is liable in summary conviction to a fine not exceeding level 3 on the standard scale. Defences available to the landlord are: that he has a reasonable excuse for failing to comply with the enforcement order because of a lack of necessary rights of access or otherwise despite having taken reasonable steps; or the work required by the order is likely to endanger any person. The landlord also commits an offence if he enters into a tenancy or lease arrangement in relation to the house at any time during which a repairing standard enforcement order has effect in relation to that house.
Right to adapt rented houses
Section 52 of the 2006 Act has been in force since 4th December 2006. This gives the tenant the right to carry out any work in the house, which the tenant deems necessary for the purpose of making the house suitable for the accommodation, welfare or employment of any disabled person who occupies or intends to occupy the house as his or her sole or main residence.
An application for consent to carry out work must be made to the landlord and specify the work which the tenant proposes to carry out. The landlord on receiving such an application may consent, subject to reasonable conditions as the landlord may impose or refuse consent. The landlord must within one month of receipt of an application serve notice of his decision on the applicant. The notice must, if imposing conditions, set out those conditions and the reasons for imposing them or if refusing consent set out the reasons for refusal and in either case explain the procedure for appealing the decision to impose conditions or the refusal. Contracting out of this provision is prohibited.
Nothing in this section permits the tenant to carry out work for which the consent or approval of any other person is required unless that consent or approval has been given, for example Listed Building Consent or possibly consent of head landlord or possibly a residents’ association in a group of factored flats. Where it is for the landlord to obtain such consent or approval the landlord must, if requested, take reasonable steps for the purpose of doing so but the landlord may recover expenses incurred in doing so from the tenant. The fact that there is a need for consent or approval from any other person other than the landlord is not of itself a reasonable ground on which the landlord may impose a condition or refuse consent.
Tenancy deposits
Part 4 of the 2006 Act gives the Scottish Ministers the power to introduce regulations relating to the operation of tenancy deposit schemes. However, it would appear that it is unlikely that this will be introduced before the start of 2008. Tenancy deposit schemes are already in operation in England. The framework there has three options: one is a simple central deposit scheme in to which deposit monies will be paid for safe keeping; the other two permit the landlord or agent to retain the deposit provided they enter into an insurance scheme to safe-guard repayment to the tenant.
Houses in multiple occupation
Part 5 of the 2006 Act is not yet in force but it helpfully re-enacts the legislation governing houses in multiple occupation and codifies it in housing legislation rather than as at present under the umbrella of The Civic Government (Scotland) Act 1982 and various statutory instruments. It does not make any major changes to the licensing regime.
|
