Scotland

where the landlord otherwise becomes aware that work requires to be carried out for the purpose of meeting the repairing standard. The landlord must then complete any required work within a reasonable time.144 The ‘repairing standard’ is given a comprehensive definition, although – given the relative novelty of the statute – there is little case law expanding upon it. A house meets the repairing standard if:145

(a)it is wind and water tight and in all other respects reasonably fit for human habitation;

(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 (in determining this, regard is to be had to the age, character and prospective life of the house and the locality in which it is situated);

(c)the installations in the house for the supply of water, gas and electricity and for sanitation, space heating and heating water are in a reasonable state of repair and proper working order;

(d)any fixtures, fittings and appliances provided by the landlord under the tenancy are in a reasonable state of repair and in proper working order;

(e)any furnishings provided by the landlord under the tenancy are capable of being used safely for the purpose for which they are designed, and

(f)the house has satisfactory provision for detecting fires and for giving warning in the event of fire or suspected fire.

This duty does not require the house to be rebuilt or reinstated in the event of destruction or damage by fire or by storm, flood or other inevitable accident.146 These rules are mandatory. Contracting out is forbidden, apart from with the consent of a sheriff, who may make an order excluding or modifying the statutory rules only if he considers that it is reasonable to do so.147

In a rural lease, the landlord is obliged to provide sufficient means to enable the tenant to cultivate the land. He/she must put buildings and fences into tenantable repair at the date of entry so that they are capable of lasting the length of the lease if used with ordinary care by the tenant.148 The landlord is not obliged to make ‘ordinary repairs’ during the course of the lease. Responsibility for ordinary repairs and maintenance falls on the tenant, who is required to leave the subjects at the end of the lease in the same tenantable condition as he received them,

144 H(S)A 06, s. 14(1)(b), (3) and (4). 145 H(S)A 06, s. 13(1).

146H(S)A 06, s. 16(1)(c). There are various other limited exceptions.

147H(S)A 06, s. 18.

148Rankine, Leases, pp. 247–51; Paton and Cameron, Landlord and Tenant, pp. 134–5.

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fair wear and tear excepted.149 The landlord is, however, responsible for carrying out ‘extraordinary repairs’ to the buildings and fences. Where repair becomes necessary because of natural decay, it amounts to an extraordinary repair.150 Neither party is obliged to repair damage resulting from damnum fatale.

Where the lease falls under the provisions of the Agricultural Holdings legislation, a specific statutory regime applies, which mirrors the approach of the common law.151 The landlord is obliged, at the commencement of the tenancy or as soon as reasonably practicable thereafter, to put the ‘fixed equipment’ of the holding into a thorough state of repair. Fixed equipment is defined as including permanent buildings necessary for the proper conduct of the holding, permanent fences, water courses and access roads.152 The landlord must provide such buildings and other fixed equipment as will enable an occupier reasonably skilled in husbandry to maintain efficient production on the holding. The landlord must, during the tenancy, replace or renew buildings or fixed equipment which is rendered necessary by natural decay or fair wear and tear. The tenant’s responsibility regarding the maintenance of fixed equipment extends only to maintaining it in as good a state of repair (natural decay and fair wear and tear excepted) as it was in immediately after it was put into repair by the landlord.

These principles produce the following results in the individual questions. The landlord of a house is responsible for repairing the central heating system when it becomes defective.153 If the central heating system has simply become obsolescent as opposed to defective, neither party is obliged to replace it. That will amount to an improvement as opposed

to a repair.154 A recent case concerning a commercial lease illustrates the point.155 The lease provided that the tenant was to repair the sub-

jects and keep them in good and substantial repair and condition. Various installations had reached the end of their ‘economic life’, although they were not defective and because of their age they no longer represented the least expensive way of performing their function. It was held that this did not mean the items were not in good

149See Caterina, ‘A Comparative Overview’, pp. 98–100.

150Paton and Cameron, Landlord and Tenant, p. 135.

151AH(S)A 91, s. 5(2) (1991 Act tenancies); AH(S)A 03, s. 16 (SLDT and LDT).

152AH(S)A 91, s. 85(1); AH(S)A 03, s. 93. 153 AH(S)A 06, s. 13(1)(c).

154On the distinction, see Rankine, Leases, p. 240.

155Westbury Estates Ltd. v. Royal Bank of Scotland plc [2006] CSOH 177, 2006 SLT 1143, paras. 34–7.

repair. The matter might have been different had the items been shown to be unreliable and prone to breakdowns and the same would be true here.

If the roof of a house or a building on a farm is damaged in a storm, neither party is bound to repair it because the damage results from damnum fatale. Depending on how serious the damage is, the tenant will be entitled either to abandon the lease (in the case of total destruction) or to claim an abatement of rent.156 If the fences on the subjects of a rural lease or, more specifically, an agricultural holding become dilapidated, the tenant is obliged to repair them, unless it is the result from

fair wear and tear or natural decay, in which case the landlord is obliged to repair.157

As for the ßaking paint, there appears to be no discussion in the main Scottish texts of whether an obligation to repair includes an obligation to repaint.158 Although English authorities are to be used with care in this field, it is difficult to disagree with the observation in the standard English text that ‘painting which one is required to do in terms of a repairing obligation is limited to such painting as is necessary for the prevention of decay and does not extend to painting for mere ornamentation’.159 That is consistent with the distinction which Scots law draws between repairing and improving. If the flaking was such that it could be said that the exterior of the residential house was not ‘in a reasonable state of repair’160 (as opposed to merely not looking smart), then the landlord will be liable to repaint.161 The landlord of an agricultural tenancy will be required to repaint if the flaking is the result of natural decay or fair wear and tear. If the landlord fails to repaint when he/she is obliged to do so, he will be liable for repairing the resulting damage to the wall.

It does make a difference if one of the parties caused the damage. The landlord’s repairing obligation does not cover defects which are the result of the tenant’s own negligence. The party negligently causing damage will be responsible under ordinary principles of delict.

The liferenter is to preserve the subjects in as good a condition as when first received, subject to accident, vis maior and possibly fair wear and

156Rankine, Leases, pp. 226–9; Paton and Cameron, Landlord and Tenant, pp. 142–3.

157AH(S)A 91, s. 5(2), AH(S)A 03, s. 16(3)(b).

158Campbell v. MÕcowan 1945 SLT (Sh Ct) 3 6 does suggest that a tenant’s repairing obligation could encompass repainting woodwork to protect against damp.

159Lewison, WoodfallÕs Law of Landlord and Tenant, para. 13.044.

160H(S)A 03, s. 13(1)(b). 161 H(S)A 03, s. 14.