Farmhouse tenancy rules

I’m often asked whether the Repairing Standard that applies to private rented housing applies to farmhouses in agricultural tenancies.

Another question I’m regularly asked is who is responsible for registering with the local authority cottages in a farm tenancy that are let out.

This is a very topical subject because the Scottish Government is looking at the standard of repair of houses within agricultural tenancies and whether or not any changes in law should be made.

The Repairing Standard is the basic level of repair that all private rented accommodation must reach and for which the landlord is held responsible.

It includes things like a requirement that a house must be wind and watertight and that the installations for the supply of water, gas, electricity and for sanitation, space heating and heating water must be in a reasonable state of repair and in proper working order.

If the property doesn’t reach the Repairing Standard and the landlord refuses to carry out the necessary work, then a landlord can be reported to the Private Rented Housing Panel.

However, the Repairing Standard does not apply to a farmhouse or cottage included in an agricultural tenancy which is the tenant’s home.

This is the case whether or not the tenancy is a secure 1991 Act tenancy, a short limited duration tenancy, limited duration tenancy or modern limited duration tenancy.

Likewise, the landlord does not have to register the farmhouse or cottage if it constitutes the tenant’s home.

As a result, in most tenancies, although the landlord has a responsibility to replace and renew parts of the farmhouse that are worn out through fair wear and tear, it is the tenant’s obligation to repair and maintain the farmhouse.

The landlord is not obliged to comply with the Repairing Standard.

In older tenancies, the fact that the farmhouse is fit for habitation to a modern standard is often entirely as a result of the investment made by a tenant.

However, other houses on the farm, whether occupied by workers or subtenants, are subject to the landlord registration rules and the Repairing Standard.

One of the features of the legislation – and often a cause of confusion – is that it is the landowner who must register properties that are let by the tenant or occupied by the employees of the tenant.

The legislation does allow the farm tenant to be the landowner’s agent for the purposes of the registration.

Accordingly, as far as such houses are concerned, the duty to register remains with the landowner but the tenant can be named as the agent.

However, as far as responsibility for complying with the Repairing Standard is concerned, that depends on whether a house is being used to accommodate an employee or is being sublet by the tenant.

For example, in relation to a farm cottage, which is occupied by a farmworker then, arguably, the burden of complying with the Repairing Standard falls on the landlord because the house has been provided as an item of necessary fixed equipment in the agricultural tenancy.

However, where the tenant is subletting, the primary responsibility for meeting the Repairing Standard falls on the tenant.

In a perfect world, the agricultural lease should set out who is to assume responsibility for the Repairing Standard.

Many leases however, predate the introduction of the Repairing Standard.

It may well be the case that if tenants are subletting with the landlord’s explicit or implicit consent, expenditure by the tenant in meeting the Repairing Standard is a relevant consideration when deciding what proportion of the rental income from the sublet should be taken into account for rental purposes.

However, these questions are not without difficulty and tenants unsure of their position should not hesitate to take detailed advice.

Although the landlord has a responsibility to replace and renew parts of the farmhouse that are worn out through fair wear and tear, in most cases it is the tenant’s obligation to repair and maintain the farmhouse.