Rural Law

In accordance with the Scottish Government’s aims to continue to improve the standards of private rented housing, two statutory instruments came into force on 1 March 2019, making various changes to the Repairing Standard, the standard which applies to the vast majority of private rented sector housing.

The changes will be effective at various times, dependent on whether landlords need lead-in times to be able to make changes to their properties, it being accepted that there will be time and expense involved.

The changes can be summarised as follows:

Changes with effect from 1 March 2019

Common Parts

In clarification of existing rules, it is now specifically provided that a property which includes common parts (e.g. a flat in a tenement) does not fail the Repairing Standard if work (which would otherwise be required to comply with the standard) cannot be carried out because a majority of the owners of the common property do not agree to such works.

Holiday Lets excluded

Tenancies for 31 days or less, where the purpose is to give the tenant the right to occupy the property for a holiday, are removed from the requirement to comply with the Repairing Standard. Depending how the arrangement was structured, this was already the case, so this provision simply gives consistency in ensuring that no short term holiday lets are affected by Repairing Standard obligations.

Tolerable Standard

It is now specifically provided that the Repairing Standard includes meeting the Tolerable Standard (by which all housing, rented or not, is judged as fit for human habitation). Again, this is simply a clarification of what was already accepted to be the case, hence the immediate effect of these provisions.

Changes with effect from 1 February 2021

Fire/Carbon Monoxide Detection

Existing Repairing Standard requirements in connection with fire, smoke and carbon monoxide detection alarms will become part of the Tolerable Standard as of this date (by virtue of The Housing (Scotland) Act 1987 (Tolerable Standard) (Extension of Criteria) Order 2019). The requirements will therefore continue to apply as they do now by virtue of the requirement for Repairing Standard properties to meet the Tolerable Standard.

The change to the Tolerable Standard means that the requirement for satisfactory alarm systems will extend to all residential property, whether rented or not, as from this date.

Changes with effect from 1 March 2024

The Repairing Standard will be updated to require private rented properties to have:

    • safely accessible food storage and food preparation space;
    • a fixed heating system;
    • safe access and use of any common parts pertaining to the property (e.g. a common access or stair);
    • secure common doors, with satisfactory emergency exit locks (i.e. locks that allow users to open them from the inside without a key); and
    • a residual current device (i.e. circuit breaker).

In addition, the duty to ensure that installations for the supply of gas and electricity are in a reasonable state of repair and in proper working order is extended to cover any other type of fuel (e.g. oil, biogas etc).

Further guidance is to be provided by the Scottish Government in relation to a number of the above requirements, though it might be anticipated that they will look to the Scottish Housing Quality Standard (being the applicable standard applying to social rented housing) as a starting point.

Changes with effect from 28 March 2027

The exception to the Repairing Standard for houses within agricultural, crofting or small landholding tenancies is removed and the Repairing Standard will apply to all such houses from this date onwards. We have touched previously on the issues that may arise in connection with the repairing standard applying to agricultural holdings, and there is likely to be some thought required on the part of landlords as to how they manage matters in future.

A Footnote on Energy Efficiency

Regulations on minimum energy efficiency standards for the private rented sector are still awaited from the Scottish Government, although the headline detail is known to be as follows:

Minimum EPC Rating

 

Applicable on change of tenancy

from

Applicable to all private rented

property from

E 1 April 2020 31 March 2022
D 1 April 2022 31 March 2025

 

The Scottish Government’s long term aims are for all private rented sector housing to reach EPC standard C by 2030, with all domestic property, rented or not, to reach EPC C by 2040.

The latest update on timing from the Scottish Government is that draft regulations and guidance will be published in May 2019, with a view to final regulations being in place by Autumn. That update comes within the latest energy efficiency consultation, which looks at that longer term aim of reaching Band C by 2030. The consultation is available here and is open until 17 June 2019.

The Scottish Government have also just issued a call for evidence on the “future for low carbon heat” for buildings not currently served by mains gas, the vast majority of which are of course located in rural areas. The call seems to be primarily aimed at providers of such low carbon heat options, but the paper may be of interest to property owners looking to understand the likely direction of travel of the Scottish Government in this area.

Fiona Scott

Senior Associate at Brodies LLP
Fiona is a Senior Associate in the Land and Rural Business team in Edinburgh. She acts in and provides advice on the full spectrum of rural property matters, principally from the perspective of large landowner clients. She has particular expertise in regulation of the private rented sector .
Fiona Scott