THE HOUSING (SCOTLAND) ACT, 1925.

(15 GEO. 5. CH. 15.)

PROVISIONS

PART I.

FOR SECURING THE REPAIR, MAINTENANCE, AND SANITARY CONDITIONS OF HOUSES.

Obligations as to Repair of Houses.

1. (1) In any contract for letting for habitation a dwelling-house at a rent not exceeding twenty-six pounds, there shall, notwithstanding any stipulation to the contrary, be implied a condition that the house is at the commencement of the tenancy and an undertaking that the house will be kept by the landlord during the tenancy in all respects reasonably fit for human habitation:

Provided that the condition and undertaking aforesaid shall not be implied when a house is let for a period of not less than three years upon the terms that it be put by the lessee into a condition in all respects reasonably fit for habitation and the lease is not determinable at the option of either party before the expiration of three years.

(2) The landlord or any person authorised by him in writing may at reasonable times of the day, on giving twentyfour hours' notice in writing to the tenant or occupier, enter any premises to which this section applies for the purpose. of viewing the state and condition thereof.

(3) In this section the expression "landlord " means any person who lets to a tenant for habitation any house under any contract referred to in this section, and includes his

successors in title, and the expression "dwelling-house cludes part of a dwelling-house.

in

(4) This section shall apply to a contract made either before or after the commencement of this Act:

Provided that in the case of a house the rent whereof exceeds sixteen pounds this section shall not apply if the contract was made before the thirty-first day of July, nineteen hundred and twenty-three.

The need for codification of the Housing Acts was nowhere more apparent than in the provisions relative to statutory conditions in leases. Under the statutory provisions formerly in force two dates were selected as the keys to the situation, viz., 14th August, 1885, and 3rd December, 1909. As regards contracts entered into after 14th August, 1885 in respect of houses rented at not more than £4, the condition was implied that the house was at the commencement of the let reasonably fit for human habitation, and it was impossible to contract out of this condition. As regards contracts entered into after 3rd December, 1909 in respect of houses rented at not more than £16, two conditions were implied, viz., (1) that the house was at the commencement of the let reasonably fit for human habitation, and (2) that the landlord would maintain the house in that condition during the currency of the let; but there was no express provision preventing contracting out of these conditions. In, however, Bell v. Gorman, 1924, 40 Sh.Ct. Rep. 10, it was held that contracting out was impliedly prohibited by secs. 14 and 15 of the 1909 Act. (This difficulty was partially removed by the 1919 Act, sec. 25, which empowered the local authority to require the owner of any house suitable for occupation by persons of the working classes to keep such house in all respects reasonably fit for human habitation.") Now, by the words in the section "notwithstanding any stipula"tion to the contrary" contracting out is expressly provided against in lettings at any rent up to the named limit.

There

Sec. 75 of the Act of 1890 was confined in its application to houses occupied by persons of the "working classes.' is no such distinction now. The only condition is that of rental, the maximum limit being £26, subject to the proviso that if the contract was made before 31st July, 1923, and the rent exceeds £16, the section is not to apply. The reason for this proviso is that £16, fixed by sec. 53 (15) of the 1909 Act, was the maximum limit until 31st July, 1923, the date of the passing of the 1923 Act, sec. 23 (9) of which substituted £26. Sec. 23 (9) of the Act of 1923 is now repealed by the Sixth Schedule to the Housing (Scotland) Act, 1925.

(1) Dwelling-house. In addition to the definition in subsec. (3), see par. 12 of the Fifth Schedule to the 1925 Act. Fit for human habitation.-See notes to sec. 26. The qualifying expression" in all respects shows that the standard to be applied in this section is a general one covering structural

as well as sanitary conditions (Walker v. Hobbs, 1889, 23 Q.B.D. 458; Hall v. Manchester Corporation, 79 J.P. 385).

This implied condition of habitability, first introduced by the 1890 Act (now repealed), is an addition to the common law obligations of the landlord. In the case of urban subjects the common law implies that the premises at the commencement of the let are reasonably fit for the purpose for which they are let, and the landlord is further bound to maintain them in that condition. But this is not a warranty, and the landlord is not in breach of his obligation unless he has been notified of the defect and has failed to remedy it (per Lord Dunedin in Wolfson v. Forrester, 1910 S.C., at p. 680); see also Fisher v. Walters, 1926, T.L.R. 42, 499. Under the Act, however, the implied condition is a warranty by which the landlord is bound whether he has received notice of the defect or not (Ryall v. Kidwell & Son, 1914, 3 K.B. 135, per Lord Reading, C.J., at p. 139, and Lush, J., at p. 143; Middleton v. Hall, 1913, 108 L.T., per Bankes, J., at p. 804; Weston v. Mories, 1923, 39 Sh.Ct. Rep. 86; M'Glory v. Playfair, 1925, 41 Sh.Ct. Rep. 224). The tenant alone has a title to sue the landlord for damages for a breach either of his obligations at common law (Cavalier v. Pope, 1906 A.C. 428; Cameron v. Young, 1908 S.C. (H.L.) 7) or of the implied warranty under this section (Ryall v. Kidwell and Middleton v. Hall, supra). See also Dunster v. Hollis, 1918, 2 K.B. 795.

As to right of a tenant to retain rent, see Bell v. Gorman, 1924, 40 Sh.Ct. Rep. 10; M'Glory v. Playfair, 1925, 41 Sh.Ct. Rep. 223. As to suspension of increase of rent, &c., under Rent and Mortgage Interest Restrictions Acts, on ground of house being unfit for habitation or in a state of disrepair, see sec. 2 (2) of Increase of Rent and Mortgage Interest (Restrictions) Act, 1920 (10 & 11 Geo. V. c. 17); sec. 3 of Rent Restrictions (Notices of Increase) Act, 1923 (13 & 14 Geo. V. c. 13); and sec. 5 of Rent and Mortgage Interest (Restrictions) Act, 1923 (13 & 14 Geo. V. c. 32); see also Wilson v. Brown, 1921, 37 Sh.Ct. Rep. 212; Sinclair v. M'Donald, 1922, 38 Sh.Ct. Rep. 43; Britton v. Anderson, 1922, 38 Sh. Ct. Rep. 142; Harcus v. Balfour Hospital Trustees, 1923, 39 Sh.Ct. Rep. 62; Lochhead v. Wheelan, 1925, 41 Sh.Ct. Rep. 58.

Under sec. 2 (2) of the Increase of Rent and Mortgage Interest (Restrictions) Act, 1920, the sanitary authority as well as the tenant may apply to the Sheriff Court for an order suspending the increase of rent. As to the right of the sanitary authority to appeal against the Sheriff's decision, see Glasgow Corporation v. Mickel, 1922 S.C. 228. As to certificate by the local authority and the case of agricultural subjects, see sec. 18 of the Rent and Mortgage Interest (Restrictions) Act, 1923; also Wilson v. Brown, Sinclair v. M'Donald, Britton v. Anderson, and Harcus v. Balfour Hospital Trustees, supra.

Rent. This means annual rent. Any sum payable by the tenant in respect of occupier's rates is not to be taken into account in determining whether the rent is within the statutory limit (Weston v. Mories, 1923, 39 Sh.Ct. Rep. 86).

Entry. Cf. sec. 109, post, at p. 115, as to powers of entry

conferred on officers of the local authority. Sec. 104, post, at p. 113, deals with penalties for obstructing persons authorised to enter dwellings. For forms, see Appendix 1., pp. 272 et seq. In writing. By the Interpretation Act, 1889, sec. 20, "writing" includes printing, lithography, photography, "and other modes of representing or reproducing words in a "visible form."

Landlord. For definition, see sub-sec. (3).

Compare definition of owner in sec. 3, post, and notes on secs. 30 and 101, post. The provisions of this section are extended by the immediately succeeding section to dwelling-houses occupied by workmen employed in agriculture. With regard to certificates as to the condition of such houses, see sec. 18 (2) of the Rent and Mortgage Interest (Restrictions) Act, 1923.

2. (1) Notwithstanding any agreement to the contrary, where under any contract of employment of a workman employed in agriculture the provision of a house or part of a house for the occupation of the workman forms part of the remuneration of the workman, and the provisions of the foregoing section are inapplicable by reason only of the house or part of the house not being let to the workman, there shall be implied as part of the contract of employment the like condition and undertaking as would be implied under those provisions if the house or part of the house were so let, and those provisions shall apply accordingly as if incorporated in this section, with the substitution of employer" for "landlord" and such other modifications as may be necessary:

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Provided that this section shall not affect the obligation of any person other than the employer to repair a house to which this section applies, or any remedy for enforcing any such obligation.

(2) This section shall apply whether the contract of employment was entered into before or after the commencement of this Act, but shall not apply in respect of any period during which the house was occupied under any such contract before the first day of January, nineteen hundred and twenty

one.

(1) This provision was first introduced by sec. 32 of the Agriculture Act, 1920. The said sec. 32 is repealed by the Sixth Schedule to this Act, vide p. 135, and of new incorporated in this Act.

(2) The first day of January, 1921.-The date on which the Agriculture Act, 1920, came into operation.