Can I terminate a lease if a tenant has failed to keep the premises in good condition and repair?

Tenants in Scotland are usually responsible for keeping premises in good condition and repair. The failure to do so does not always give the landlord an automatic right to terminate the lease.

Requirements to terminate a lease

A landlord will only be entitled to terminate the lease if a "fair and reasonable landlord" would do so (Section 5 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985).

What does "fair and reasonable" mean?

The terms fair and reasonable are subjective, however, legislation and case law have provided some guidance as to what a "fair and reasonable landlord" would do.

Is the breach capable of being remedied in a reasonable time and if so, has the landlord afforded the tenant a reasonable opportunity to remedy the breach?

Has the landlord engaged with the tenant to find a solution to the problem?

Is the lease still able to function for the purposes it was envisaged despite the disrepair?

Are less draconian measures available which will protect the landlord's interest?

There are some repairs that are more likely to meet the above tests than others. If, for example, the fire protection measures in the building are in poor condition such that there is a risk to life and property and it affects the insurance of the building, it is likely that this would be a valid ground for termination.

What steps should I take if a tenant fails to keep the premises in good condition and repair?

In the first instance it is useful to write to the tenant making it clear that they are in breach and give them a reasonable time-frame (having regard to what is required to be done) to make good the breach. If the tenant still fails to comply, the lease usually allows the landlord to either undertake the repairs itself and pass the cost onto the tenant or seek a court order requiring the tenant to carry out the repairs.

If all of these options have been exhausted and the premises are still not in good condition and repair, then termination may be an option, but we would suggest seeking legal advice before taking this step.