by Simon Boendermaker, Trainee Solicitor

On 7th November, Tenant Farming Commissioner (“TFC”) Bob McIntosh announced that the Scottish Government intends to make legislation in 2019 to introduce the repairing standard to agricultural holdings. 

The repairing standard is the minimum standard which most homes let for human habitation must meet. To meet the standard, the landlord is responsible for ensuring: 

  1. The property is wind and watertight;
  2. The exterior of the house, including drains, gutters and external pipework must be in a reasonable state of repair and working order;
  3. Any installations for the supply of water, gas, electricity, sanitation and heating (including hot water) must be in a reasonable state of repair and working order;
  4. Any fixtures, fittings and appliances provided by the landlord under the tenancy are in a reasonable state of repair and in proper working order;
  5. Any furnishings provided by the landlord under the tenancy are capable of being used safely for the purpose for which they are designed;
  6. The house has satisfactory provision for detecting fires and for giving warning in the event of fire or suspected fire; and
  7. The house has satisfactory provision for giving warning if carbon monoxide is present in a concentration that is hazardous to health. 

This standard does not currently apply to housing which is provided as part of an agricultural holding, croft or small landholding. In most of these cases, the farmhouse will be treated as an item of fixed equipment, like a shed. This means that the landlord will be responsible for fixing parts of the farmhouse worn out through fair wear and tear, while the tenant is otherwise generally responsible for repairing and maintaining the farmhouse. In situations such as this, landlords must have regard for the TFC Code of Practice on the Maintenance of the Condition of Tenanted Agricultural Holdings, which governs good practice for repairing and maintaining fixed equipment. 

All of this has led to a situation where some farmhouses have mainly been improved by the landlord, some by the tenant, some equally by both and some have barely been improved during the tenancy. The hope is that introducing a repairing standard will provide clarity over the role of the landlord and tenant in maintaining the property. Usually, responsibility for fixed equipment is governed by post-lease agreements between the landlord and tenant, which can vary from lease to lease. 

However, where a tenant is letting out property, for example a cottage on the farm to an employee, as a separate sub-lease, then this will be subject to the repairing standard. It is important for the landlord of the agricultural tenancy to make the tenant aware of this, as there can be an assumption that the landlord of the agricultural tenancy also has the landlord’s responsibility in relation to any sub-leases. 

Although the legislation will be introduced next year, the TFC has indicated that the deadline for tenant housing in agricultural holdings to meet the repairing standard will be 2027. This should allow both parties ample time to discuss how best to achieve the repairing standard, particularly in situations where either a landlord or tenant has already carried out repairing obligations under a post lease agreement. In such situations, the parties will need to establish whether any work required is the responsibility of the landlord or tenant. Early engagement between both parties will therefore be necessary to address these issues and produce agreement well in advance of any deadline. 

If you require advice about the issues raised in this article or negotiations with your landlord/tenant relating to your agricultural tenancy, please do get in contact with us.