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Essays in Conveyancing and Property Law

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Frankie McCarthy
, 
James Chalmers
, 
Stephen Bogle

Enjoying Property

12. Enforcing Repairing Obligations by Specific Implement

Angus McAllister

Texte intégral

A. Repairing Obligations

  • 1 J Rankine, A Treatise on the Law of Leases in Scotland, 3rd edn (1916) 241; for other references, i (...)

1Repairing obligations in leases may either be owed by the landlord to the tenant or vice versa, depending upon which of them has responsibility for the repair in question. Which party owes the obligation is likely to vary according to the type of lease. At common law, all landlords of urban leases have an obligation to provide subjects in a tenantable or habitable condition, and to maintain them in a like condition throughout the let.1 However, most commercial leases are granted on a full repairing and insuring (FRI) basis, contracting out of the common law and making repairs the responsibility of the tenant.

  • 2 There may be a partial exception to this in the case of private sector residential tenancies under (...)
  • 3 Housing (Scotland) Act 2006 ss 13 (1)(a) and 14 (1) (private sector tenancies); Housing (Scotland) (...)
  • 4 Galloway v Glasgow City Council 2001 HousLR 59; Todd v Clapperton [2009] CSOH 112, 2009 SLT 837.

2The opposite is true in the case of residential leases: it is not normally possible to contract out of the landlord’s common law obligation because it has been strengthened and considerably reinforced by statute.2 In all residential tenancies, the landlord has a duty to provide a house that is wind and watertight and in all other respects reasonably fit for human habitation at the commencement of the tenancy and to keep it that way throughout its currency.3 The slight discrepancy in wording between the common law and statutory wording is probably due to the fact that the latter is taken from the equivalent English provision; however, it has been held that there is no significant difference between the common law and the statutory formulations.4

  • 5 Housing (Scotland) Act 2006 s 13 (1)(b) - (f).

3The repairing obligations of private sector residential landlords (collectively known as “the repairing standard”) extend much further and are spelled out in greater detail, beyond the basic habitability requirement, which mirrors the common law obligation and applies to social tenancies.5

  • 6 Agricultural Holdings (Scotland) Act 1991, s 5; Agricultural Holdings (Scotland) Act 2003 s 16.

4In agricultural leases, both the landlord and the tenant have repairing obligations, e.g. their respective obligations regarding the maintenance of fixed equipment.6

B. Enforcement by Specific Implement

  • 7 For a general discussion of specific implement, see WW McBryde The Law of Contract in Scotland, 3rd (...)
  • 8 Salaried Staff London Loan Co Ltd v Swears & Wells Ltd 1985 SC 189; 1985 SLT 326.

5In principle, it ought to be possible for either party to enforce a repairing obligation by specific implement, by means of a decree ad factum praestandum, compelling the other party to fulfil the broken obligation. Specific implement is a primary breach of contract remedy in Scotland.7 There are a number of situations where it cannot be used (e.g. for the payment of money), but where it is competent it is a right which the court has the discretion to refuse only in exceptional circumstances; these include situations where it would be impossible to enforce, or where its imposition would cause exceptional hardship to the recipient. Damages would then be the appropriate alternative remedy. In such cases the onus is on the defender to aver and prove that it would be inequitable for implement to be granted.8

  • 9 (1890) 17 R (HL) 1. See also Co-operative Insurance Society v Argyll Stores (Holdings) Ltd [1998] A (...)

6This contrasts with the situation in England, where damages is the primary remedy, and specific performance (the nearest English equivalent of specific implement) is an equitable alternative that the court only has the discretion to grant in cases where damages would not be a sufficient remedy. As Lord Watson observed in the leading case of Stewart v Kennedy:9

In England the only legal right arising from a breach of contract is a claim of damages; specific performance is not a matter of legal right, but a purely equitable remedy, which the Court can withhold when there are sufficient reasons of conscience or expediency against it. But in Scotland the breach of a contract for the sale of a specific subject such as landed estate gives the party aggrieved the legal right to sue for implement, and although he may elect to do so, he cannot be compelled to resort to the alternative of an action of damages unless implement is shown to be impossible… Even where implement is possible, I do not doubt that the Court of Session has inherent power to refuse the remedy on equitable grounds, although I know of no instance in which it has done so.

  • 10 Marianski v Jackson (1872) 9 SLR 80.

7There are past examples of specific implement being used successfully to enforce a repairing obligation.10 However, the few reported cases are more likely to be examples of failure, and it is necessary to consider the reasons for this.

C. Problems of Specification

  • 11 Middleton v Leslie (1892) 19 R 801 at 802 per the Lord President; see also Fleming & Ferguson Ltd v (...)

8The main problem seems to have been the need for precision, the traditional rationale being that breach of an order ad factum praestandum could result in penal consequences (at one time most likely imprisonment), and so the defender had to be absolutely clear about what needed to be done in order to obey it:11

In pronouncing decree ad factum praestandum, the Court has to bear in mind the consequences and sanctions of such a decree. Failure to implement such a decree exposes a defender to the penalty of imprisonment which it is in the power of the pursuer to put in force. I therefore think that in the case of decrees which may be thus enforced, or which expose a defender to penal consequences, it is right that the court should so express the decree that the defender shall be in no doubt regarding the obligation he has to discharge.

  • 12 The case law is extremely sparse and often lacking in depth or detail, but see, for example, Renfre (...)

9For example, an action requiring a residential landlord to comply with the common law obligation to maintain the subjects in a tenantable or habitable condition, according to the traditional view, would be likely to fail for want of specification if framed in such broad terms. Instead, it would be necessary to give precise details of the repairs required, thereby placing a substantial burden upon the pursuer, one which in practice would prove extremely difficult to overcome.12

  • 13 See Postel Properties Ltd v Miller and Santhouse plc 1993 SLT 353 at 357 per Lord Sutherland.

10It should be noted right away that the spectre of imprisonment was greatly weakened some time ago by Section 1 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1940, which (in the case of natural persons) sanctions imprisonment only in cases where the breach is wilful, and gives the court the discretion to impose an alternative penalty. Moreover, imprisonment was never an option in the case of corporate bodies such as companies or local authorities, and it is now clear that the imposition of a fine is an appropriate alternative in such cases.13

D. Keep-open Obligations

11However, much of the case law relating to the enforcement (or attempted enforcement) of repairing obligations is very old, and virtually all of it predates the considerable development in the law of specific implement deriving from another area of lease law, the enforcement of so-called keep-open obligations in commercial leases. In the substantial body of case law on this topic the remedy of specific implement has come under intensive judicial scrutiny, and the courts have addressed many of the same difficulties that have prevented the enforcement of repairing obligations.

12From the 1980s onwards, cases began to arise of tenants in shopping centres who ceased to occupy shops that were trading unprofitably. This was invariably in breach of the standard lease condition requiring the tenant to occupy and trade from the subjects in terms of the lease’s use clause. The tenant would continue to pay rent, but would cut its overheads by closing down the unprofitable branch.

13There was never any doubt that such a tenant was in breach of contract and that the landlord could claim damages and/or rescind the lease. However, damages could be difficult to quantify and there was no point in ending the lease of a property that could not be re-let. Instead, landlords tried to resort to specific implement, in order to compel the tenant to re-occupy and continue trading from the shop.

  • 14 Grosvenor Developments (Scotland) plc v Argyll Stores Ltd 1987 SLT 738.

14At first specific implement was thought to be incompetent in such cases, for the familiar reasons involving specification.14 How could the court grant a decree ad factum praestandum for an activity which (like carrying out repairs) involved performing, not a single action, but a large number of actions? Moreover (unlike the situation with repairs) enforcing keep-open provisions involved compelling the tenant not merely to carry out a once-and-for-all action or number of actions, but a series of actions that would continue for a period of years until the lease came to an end.

  • 15 1996 SC 227; 1996 SLT 669.

15However, this position was reversed by the Inner House of the Court of Session in the leading case of Retail Parks Investments v Royal Bank of Scotland (No 2),15 a decision that has been followed in a number of subsequent cases. The court granted an order of specific implement compelling the Royal Bank to re-open their branch in the Sauchiehall Centre in Glasgow and to continue conducting their business there for the remaining seven years of their lease.

  • 16 Ibid 1996 SLT 669 at 678 per Lord McCluskey.

16While recognising that each case had to be decided on its own merits, Lord McCluskey was able to formulate some general statements of the legal considerations to be kept in mind when assessing the competence of an action ad factum praestandum. Several of these are relevant to the present discussion:16

  1. The material wording of the contract must make it certain what the defender has to achieve in order to fulfil the obligation, though this will not by itself guarantee the granting of a decree of specific implement.

  2. An order of specific implement may require a number of distinct acts in order to secure compliance. However, the more numerous the required acts, the more necessary will it be to find terms for the order that will satisfy the need for adequate precision.

  3. An order may specify the end to be achieved but leave open the precise means whereby that end is to be achieved, thereby allowing a degree of flexibility.

  4. In considering the necessary degree of precision (bearing in mind that breach of the order could have serious, including penal, consequences) the court should consider the commercial realities which form the background to the undertaking of the parties’ mutual obligations. In Retail Parks the defenders were a large commercial organisation that freely undertook the obligation with legal advice, and they had already occupied the subjects for the purpose stated in the lease for nearly 20 years without any apparent difficulty or misunderstanding. When seeking to enforce repairing obligations, one could make a similar comment, for example, about large residential landlords, such as local authorities, housing associations or private letting organisations with many properties and many years of experience.

  5. Even if the defenders experienced difficulties in knowing what was required of them, the matter would have to come before the court again before any penalty for breach could be imposed. The court would have to be satisfied that the breach was wilful and any imprecision in the wording of the order would be exposed; if satisfied that the breach was not wilful, the court could even give the defenders a further opportunity to comply before imposing a penalty.

E. The English Position

  • 17 See E McKendrick, “Specific Implement and Specific Performance – A Comparison” 1986 SLT (News) 249; (...)
  • 18 Walker, Civil Remedies (n 12) 276.
  • 19 [1998] AC 1; [1997] 2WLR 898.
  • 20 1998 AC 1 at 13 per Lord Hoffmann. For a general discussion regarding the competence of specific pe (...)

17As noted above, in England specific performance is a purely equitable remedy that will only exceptionally be granted. It has been argued in the past that the distinction between the English and Scottish positions is more apparent in theory than in practice.17 It has been suggested that the main difference in practice is that in Scotland, but not in England, there is a presumption in favour of specific implement,18 though the circumstances in which both remedies are likely to be denied, and those where they may be granted tend to be similar. A notable exception is keep-open obligations, where the landlords’ remedy is still confined to damages, a position confirmed by the House of Lords in Co-operative Insurance Society Ltd v Argyll Stores (Holdings) Ltd.19 Interestingly, however, the court made a distinction between court orders requiring a defendant to carry on an activity, such as running a business, and orders which require him to achieve a result, such as the enforcement by specific performance of building contracts and repairing obligations.20

18The English action is therefore supposedly more restricted in scope than the Scottish one, but can, nevertheless, encompass the enforcement of repairing obligations. Admittedly, English house tenants are given statutory assistance by section 17 of the Landlord and Tenant Act 1985 which specifically facilitates the use of specific performance to enforce repairing obligations against residential landlords. There is no statutory equivalent of this in Scotland. Nevertheless, given the wider scope of the Scottish remedy indicated in the keep-open cases, it would seem strange if it could not be successfully used to enforce repairing obligations.

F. Keep-open Decrees

  • 21 1997 SLT 1052; 1997 SCLR 835.
  • 22 1997 SLT 1052 at 1055.
  • 23 2000 SC 297; 2000 SLT 414
  • 24 2003 GWD 17-540.
  • 25 Ibid at para 6.

19If we look at the actual wording of the decrees granted in keep-open cases, we find a degree of generality and even vagueness that would never have been contemplated under the old law. In Retail Parks Investments the Royal Bank was ordered inter alia “to use and occupy the premises as bank offices” and to keep them open for business during “all normal business hours.” In Co-operative Wholesale Society Ltd v Saxone Ltd21 the defenders were ordered “to keep the subjects open as a high class shop” for the sale of “footwear, hosiery, and handbags of all descriptions.” In Lord Hamilton’s view the expression “high class shop” was “a familiar commercial expression readily capable of objective assessment.”22 In Highland and Universal Ltd v Safeway Properties Ltd (No 2)23 the expressions “high class retail store” and “normal hours of business” were again held, for the purposes of a decree ad factum praestandum, to be sufficiently precise phrases with an easily ascertainable meaning. And in Oak Mall Greenock Ltd v McDonald’s Restaurants Ltd24 decree was granted ordaining McDonald’s to keep the restaurant in question open as “a quick service restaurant for the consumption of food and non-alcoholic drink both on and off the Leased Premises.” In applying the guidelines laid down in Retail Parks, Lord Drummond Young observed:25

In framing an order for specific implement of a lease or other contract, commercial realities must be taken into account. In particular, it must be presumed that, when they agreed on the terms of their contract, the parties considered the expressions used by them to be sufficiently precise to let them know what had to be done. Consequently, if the order for implement essentially repeats the provisions of the contract, it is inherently likely that the parties will know what [it] means and what must be done to comply with its terms.

20Unmoved by the hardship that would be experienced by the McDonald’s organisation by having to keep open a restaurant that had been trading at a loss for almost four years, his lordship decided that this was not an exceptional case where the court should exercise its discretion to refuse specific implement.

21As already noted in relation to Lord McCluskey’s comments in Retail Parks, Lord Drummond Young’s observation could equally apply to the repairing obligations owed by many social and private landlords.

G. Pik Facilitites v Shell UK

  • 26 2005 SCLR 958

22In Pik Facilities Ltd v Shell UK Ltd and Another26 a specific implement action to enforce a commercial tenant’s repairing obligation failed because the lease had ended. However, the case did not fail because of lack of specification or precision. Lord Kingarth concluded, though without any great enthusiasm, that the pursuers’ pleadings were adequate in this respect. This case is significant as it is an isolated example following in the wake of the keep open decisions in which an action of specific implement almost succeeded.

H. Third Party References

  • 27 Act of Sederunt (Sheriff Court Ordinary Cause Rules) 1993, SI 1956. For a discussion of this proced (...)

23Rule 29(2) of the Ordinary Cause Rules for the Sheriff Court provides as follows:27

29.2 – Remit to person of skill.

(1) The sheriff may, on a motion by any party or on a joint motion, remit to any person of skill, or other person, to report on any matter of fact.

(2) Where a remit under paragraph (1) is made by joint motion or of consent of all parties, the report of such person shall be final and conclusive with respect to the subject-matter of the remit.

  • 28 (1878) 5 R 909; see also Brock v Buchanan (1851) 13 D 1069.

24The remit of technical detail to a person of skill has a long history at common law, and has been used in the past in order to determine the detailed measures required to fulfil repairing obligations in leases. In Barclay v Neilson28 the Inner House, finding that the landlord of a farm was obliged to carry out such repairs and make such additions as were necessary to enable the tenant properly to cultivate the farm according to the terms and conditions of the lease, ordered:

Of consent remit to Mr John Dickson, Saughton Mains, to visit the said farm, and report to the Court what additions and repairs are necessary for that purpose…

  • 29 (1878) 5 R 909 at 911 per the Lord President.

25In the words of the Lord President:29

I do not think that this is a case for a proof at large, and I take the liberty of suggesting that, if neither of the parties have anything to say against it, the proper course will be to have the amount of additions and repairs which are necessary to enable the tenant to cultivate the farm in a proper manner settled by a remit to a man of skill.

26This procedure would therefore appear to have the potential to help get round some of the problems of specification involved in framing an action ad factum praestandum. However, two difficulties immediately arise, both inherent in what was said above.

  • 30 (1888) 15 R 776.
  • 31 1919 35 Sh Ct Rep 78; see also Maclagan v Marchbank (1911) 2 SLT 184; (1911) 27 Sh Ct Rep 282.

27(1) Rule 29(1) makes it absolutely clear that such a remit can only be made on matters of fact, and not on questions of law. This principle is also long established at common law. In Quin v Gardner & Sons Ltd30 it was held that a remit requiring construction of the contract in question was incompetent because it involved a question of law. In the context of repairing obligations in leases, in was held in McFarlane v Crawford,31 applying Quin, that a crave framed in the following terms was incompetent:

to remit to a person of skill (a) to inspect the premises at 19 Duncan Street; (b) to report to the Court the present condition thereof, and whether the premises are wind and water tight and in good repair and in a proper tenantable and habitable state; and (c) if not, what repairs are necessary to make the premises thoroughly wind and water tight, and otherwise put them into good repair and a proper tenantable and habitable condition…

  • 32 McFarlane v Crawford 1919 35 Sh Ct Rep 78 at 79 per Sheriff Welsh.

28In the words of Sheriff Welsh:32

[T]he lease being silent as to the obligation of the defenders for the upkeep of the premises, the reporter would require to inform himself what the common law implied in such circumstances; that is to say, he would require to apply his mind to a question of law at the outset of his investigations. Having informed himself upon this matter, he would then require to find out the state of the facts. He would next require to apply his mind to the construction of the defenders’ legal obligation for upkeep, and consider whether that obligation applied to each or all of the matters of fact which he so found. In short, the Court is asked to remit a mixed question of law and fact, which is, in my opinion, incompetent. The question of the nature and extent of the defenders’ obligation for upkeep is a question of law for the consideration of the Court.

29Presumably the same objection would apply whatever the source of the repairing obligation, whether it involved interpretation of the common law, or the construction of a statutory or lease provision.

  • 33 Welsh, Macphail (n 28) para 13.29.

30(2) Under Rule 29(2) a remit is not conclusive unless it is made jointly by both parties or with the consent of both. The wording would appear to exclude a remit by the sheriff ex proprio motu.33 If made by only one party, therefore, the other could object (presumably a likely occurrence) and the expert’s findings would not be conclusive. The matter would have to go back to the court for determination, and possibly involve the competing testimony of expert witnesses. This is consistent with the decision in Barclay v Neilson referred to above. The main issue in that case was whether the landlord owed the repairing obligation at all. The court having decided that he did, there appeared to be no difficulty with obtaining the consent of both parties to the remit.

I. Specific Performance of Statutory Duty

  • 34 Re-enacting s 91 of the Court of Session Act 1868. The cases quoted below relate to the 1868 Act. F (...)

31Section 45 of the Court of Session Act 198834 provides inter alia:

The Court may, on application by summary petition … order the specific performance of any statutory duty, under such conditions and penalties (including fine and imprisonment, where consistent with the enactment concerned) in the event of the order not being implemented, as to the Court seem proper.

  • 35 Carlton Hotel Co Ltd v Lord Advocate 1921 SC 237 at 246 per Lord Dundas, 1921 1 SLT 126. Regarding (...)

32This Scottish use of the term “specific performance” appears to be distinct from specific implement, but to operate in a similar way, though only in relation to the enforcement of a statutory duty:35

Those who invoke this remedy must, I think, be careful to aver a clear statutory duty which those on whom its performance is incumbent have refused, or unduly delayed, to perform; and to state in precise terms the order which, by their prayer, is sought from the Court. Such an order is more or less equivalent to the English mandamus, as to the nature and application of which there is much authority in England.

  • 36 In this regard see also Fleming & Ferguson Ltd v Paisley Magistrates 1942 SC 547 at 557 per Lord Co (...)

33There is therefore the same need for precision that was noted above in relation to specific implement.36

  • 37 Housing (Scotland) Act 2006 ss 13 (1)(a) and 14 (1) (private sector tenancies); Housing (Scotland) (...)

34This procedure could, in theory at least, provide an alternative remedy in cases where a repairing obligation is imposed by statute. This excludes commercial leases, where such obligations derive from the common law or the terms of the lease, but not residential leases where, as we saw above, the landlords’ repairing obligations largely derive from statute. In particular, it might be used to enforce the obligation to provide a house that is wind and watertight and in all other respects reasonably fit for human habitation at the commencement of the tenancy and to maintain it in that condition throughout currency of the lease.37

  • 38 T Docherty Ltd v Monifieth Burgh Council 1970 SC 200, 1971 SLT 13.
  • 39 Sons of Temperance Friendly Society, Petitioners 1926 SC 418, 1926 SLT 273.
  • 40 Walker Civil Remedies (n 12) 272. However, Professor Walker cites no authority in support of this v (...)

35The procedure has been held to be competent against a local authority,38 against a friendly society,39 (which arguably could extend to other bodies regulated by statute, such as housing associations) and (in the opinion of Professor Walker) “against a private person such as an employer who is subject to a statutory duty.”40 This last category could presumably also extend to private landlords under an assured tenancy and registered social landlords other than local authorities or housing associations.

  • 41 Court of Session Act 1988 s 51.

36While the availability of this remedy seems worth pointing out, it has the obvious disadvantage of only being competent in the Court of Session.41 It therefore offers no clear advantage over raising an action ad factum praestandum in the sheriff court and, as we will see below, in the case of private sector residential tenancies the repairing standard enforcement order (RSEO) probably remains the best remedy.

J. Repairing Standard Enforcement Orders (RSEOs)

  • 42 Mostly assured and short assured tenancies under the Housing (Scotland) Act 1988, but also a dimini (...)
  • 43 Housing (Scotland) Act 2006 ss 13 and 14.
  • 44 Ibid s 13(1)(a).
  • 45 Housing (Scotland) Act 2006 s13(1)(b)-(f).

37In relation to private sector residential tenancies only42 the Housing (Scotland) Act 2006 introduced the Repairing Standard and set out the obligations of landlords regarding compliance with it.43 In addition to the requirement to provide and maintain a house that is wind and watertight and reasonably fit for human habitation (the “habitability” obligation), which is also owed by social landlords and mirrors the common law obligation,44 it goes into much more detail about the structure and exterior of the house, sanitary, heating and other installations, the safety of fixtures and appliances supplied by the landlord, and fire safety.45

  • 46 Ibid s 22.
  • 47 Rent (Scotland) Act 1984 sch 4, paras 5 and 6 (as amended).
  • 48 See the website of the Private Rented Housing Panel, available at www.prhpscotland.gov.uk.

38The 2006 Act also provides a statutory mechanism for the enforcement of the landlord’s repairing obligations. If a tenant believes that the landlord has failed to comply with the repairing standard, he or she can apply to the Private Rented Housing Panel (formerly the Rent Assessment Panel), whose chairman may refer the matter to a private rented housing committee (formerly a rent assessment committee).46 The constitution of each private rented housing committee, consisting of a chairman and two other members, is determined by the president of the Rent Assessment Panel.47 A Committee will usually be made up of a lawyer acting as chairperson, a chartered surveyor and a lay member. Lay members come from a diverse range of backgrounds and many of them are acknowledged experts in housing issues.48

  • 49 Housing (Scotland) Act 2006 s 24.
  • 50 Ibid s 28.

39If a committee decides that a landlord has failed to comply with the repairing standard, it has the power to issue a repairing standard enforcement order (RSEO) requiring the landlord to carry out any necessary work and make good any damage caused by it within a reasonable deadline of at least 21 days.49 A landlord who fails to comply with an RSEO is guilty of an offence and may be subject to a fine.50

40It will be noted right away that RSEOs are effectively a statutory form of specific implement. It will also be noted that the constitution of a private rented housing committee makes it well placed to overcome some of the difficulties with specific implement, as it is not only qualified to decide questions of law, but also to address problems of specification, effectively taking on the role of expert witness.

  • 51 Ibid (Commencement No. 5, Savings and Transitional Provisions) Order 2007, SSI 270.
  • 52 Reports of the decisions of the private rented housing committees can be found on the Panel’s websi (...)

41Since 3 September 2007, when the relevant part of the 2006 Act came into force,51 a surprisingly large number of RSEOs have been granted. Between that date and 31 October 2014, 1167 decisions by private rented housing committees relating to repairs have been reported. 864 of these concern breaches of the habitability obligation contained in section 13 (1) (a) of the Act, the one which also applies to social tenancies and mirrors the landlord’s common law obligation. In some of them the committee has refused to grant an order, and others deal with matters like the variation of an order (usually by extending the deadline), but a large proportion of the reports are of orders which have been granted.52

  • 53 Cameron v Todd, 21 May 2014, reported at www.prhpscotland.gov.uk.

42The following is an example of a recent order:53

NOTICE TO

Colin Todd

Whereas in terms of their decision dated 21st May 2014, the Private Rented Housing Committee determined that the Landlord has failed to comply with the duty imposed by Section 14 (1)(b) of the Housing (Scotland) Act 2006 and, in particular, that the Landlord has failed to ensure that the property is wind and watertight and in all respects reasonably fit for human habitation and that installations in the Property for the supply of water, gas and electricity and for sanitation, space heating and heating water are in a reasonable state of repair and in proper wording order.
The Private Rented Housing Committee now requires the Landlord to carry out such work as is necessary for the purposes of ensuring that the Property meets the repairing standard and that any damage caused by the carrying out of any work in terms of this Order is made good.
In particular the Private Rented Housing Committee requires the following:

  1. The landlord has to ensure that a suitably qualified heating engineer inspect the heating system with regard to providing a report on whether or not it has sufficient and proper thermostatic control and thereafter to comply with any recommendations of the engineer.

  2. The landlord is to ensure that the bath panel and its trim are properly fitted.

  3. The landlord is to carry out work to ensure that the front door is wind and water tight.

The Private Rented Housing Committee order that these works must be carried out and completed within twenty-eight days of the date of service.

43A typical report will not only contain the order itself, but will give a detailed account of the committee’s determination, including the background of the case, a summary of the issues, an account of the evidence, the committee’s findings in fact and the reasons for their decision.

  • 54 Housing (Scotland) Act 2006 ss 64(4).

44It is submitted that a landlord receiving such an order, coupled with the committee’s detailed account of their decision, will be left in no doubt about what is required of him or her in order to avoid incurring a penalty. At any rate, any landlord or tenant aggrieved by the decision of a private rented housing committee may appeal to the Sheriff by summary application within 21 days of being notified of the decision.54 If any such appeals have raised substantive legal issues, none of them have made it into the casebooks.

45It is difficult to escape the conclusion that RSEOs, in sharp contrast with their common law counterparts, have been remarkably successful in the enforcement of repairing obligations.

K. Conclusions

46Specific implement, as a remedy to enforce repairing obligations in leases, has long fallen into disuse because of its long history of failure, mainly due to problems of specification and the fear of the unfair imposition of penal consequences. For a number of reasons that have been set out above, it is submitted that the remedy is worth reconsidering and has the potential to be a much more useful tool for both landlords and tenants when enforcing repairing obligations. In particular:

    • 55 1998] AC 1; [1997] 2WLR 898.
    • 56 1998 AC 1 at 13 per Lord Hoffmann.

    The greater flexibility enabled by the keep-open decisions has addressed many of the fears regarding specification and possible penal consequences. It is worth pointing out that part of the perceived problem with keep-open decrees was not only that they related to a large number of actions, but also that these actions extended over a lengthy period of time. Repairing obligations present only the first and not the second of these difficulties. As Lord Hoffmann pointed out in Co-operative Insurance Society Ltd v Argyll Stores (Holdings) Ltd55 (in relation to the supposedly more restricted English remedy of specific performance) a distinction can be made between court orders requiring a defendant to carry on an activity, and those designed to achieve a result. And one of the examples which he gave of the latter was the enforcement of repairing obligations by specific performance.56

  1. The possibility of delegating technical details to a person of skill could go some way to addressing any remaining problems of specification, provided that care is taken to confine any such remit to questions of fact. Even if the objection of one of the parties prevents the expert’s decision being final, the court could nevertheless be given considerable assistance in wording a suitable decree.

  2. Repairing standard enforcement orders have proved to be a formidable tool by means of which private sector residential tenants can compel their landlords to carry out necessary repairs. They have operated in a similar way to specific implement, without apparently throwing up any substantial legal difficulties. The decisions of the private rented housing committees (which include legal expertise) have been thoroughly documented and their experience could provide valuable guidance for the courts in framing decrees ad factum praestandum. There seems no reason in theory why social tenants and commercial landlords should remain the poor relations.

  • 57 Problems thoroughly examined in P D Brown and A McIntosh Dampness and the Law (1987).

47The greatest potential for the revival of specific implement is probably in the case of residential tenants in the social sector, who do not of course have recourse to the Private Rented Housing Panel. Problems of disrepair in residential property have a long history in social as well has private housing, one of the most notorious examples being the severe dampness frequently experienced in sub-standard council housing.57 For the tenant of such a property, who possibly has limited opportunities to move elsewhere, damages alone may not be an adequate remedy, and the ability to compel the landlord to carry out repairs could be invaluable.

  • 58 See for example the leading English case of Summers v Salford Corporation [1943] AC 283, [1943] 1 A (...)

48We noted above the remarks of Lord McCluskey in Retail Parks that the defenders were a large commercial organisation that freely undertook their obligation with legal advice, and that they had already occupied the subjects for the purpose stated in the lease for nearly 20 years without any apparent difficulty or misunderstanding. A similar comment could be made about social landlords, particularly local authorities and housing associations. As well as being large organisations who freely undertook their obligations with legal advice, one would expect them normally to have extensive experience and expertise in executing repairs. And the meaning of “wind and water tight and in all other respects reasonably fit for human habitation” (and its common law equivalent) has been thoroughly explored in legal precedent, mainly because the statutory formulation is identical to its English counterpart, and has been so for more than 100 years.58

  • 59 Scottish Executive “Model Scottish Secure Tenancy Agreement” (revised version July 2002), available (...)

49It is also worth pointing out that the model tenancy agreement for Scottish secure tenancies recommended by the Scottish Executive59 elaborates substantially upon the basic habitability obligation prescribed by statute, including many of the obligations spelled out in the repairing standard introduced for the private sector by the Housing (Scotland) Act 2006, and also setting out in detail the landlord’s repairing obligations in relation to dampness, condensation and mould. In cases where a social landlord has adopted this model, therefore, the enforcement rights of tenants have been even more strengthened.

50Specific implement has perhaps less potential in the case of commercial leases. As noted above, the standard commercial lease is the tenant’s FRI (full repairing and insuring) lease, by which the landlord’s common law repairing obligation has been passed on to the tenant. It is also standard for commercial leases to provide that, in the event of the tenant failing to carry out repairs, the landlord may step in and carry them out at the tenant’s expense. This right also provides the legal justification for the landlord presenting an outgoing tenant with a bill for dilapidations. In these circumstances, specific implement may not be the most effective and convenient remedy. However, there may still be cases where the possibility of specific implement may be useful, for example in cases where commercial landlords may be short of the funds to carry out the repairs themselves.

51In any case, any further development of the common law can only enhance the enforcement potential of repairing obligations in all types of lease. We have seen above how the development of specific implement deriving from the keep-open issues in commercial leases can be applied to assist with the enforcement of repairing obligations in residential leases. There is no reason why this type of cross-fertilisation could not work in the opposite direction, with the result that new precedents in the residential sector could establish principles applicable in other areas of lease law. Landlords and tenants of commercial and agricultural leases could therefore also benefit in the longer term.

52As we saw above, specific implement is a primary remedy for breach of contract in Scotland, there is a presumption in favour of it being available, and the onus is upon the defender in any case to show why it should be denied. It is hoped that the above discussion may help to make that onus more difficult to overcome.

Notes

1 J Rankine, A Treatise on the Law of Leases in Scotland, 3rd edn (1916) 241; for other references, including the institutional writers, see A McAllister Scottish Law of Leases, 4th edn (2013) paras 3.12 and 3.40.

2 There may be a partial exception to this in the case of private sector residential tenancies under s 18 of the Housing (Scotland) Act 2006, which allows limited contracting out of statutory repairing obligations.

3 Housing (Scotland) Act 2006 ss 13 (1)(a) and 14 (1) (private sector tenancies); Housing (Scotland) Act 2001, Sch 4, para 1 (social tenancies).

4 Galloway v Glasgow City Council 2001 HousLR 59; Todd v Clapperton [2009] CSOH 112, 2009 SLT 837.

5 Housing (Scotland) Act 2006 s 13 (1)(b) - (f).

6 Agricultural Holdings (Scotland) Act 1991, s 5; Agricultural Holdings (Scotland) Act 2003 s 16.

7 For a general discussion of specific implement, see WW McBryde The Law of Contract in Scotland, 3rd edn (2007) para 23-01 to 23-37.

8 Salaried Staff London Loan Co Ltd v Swears & Wells Ltd 1985 SC 189; 1985 SLT 326.

9 (1890) 17 R (HL) 1. See also Co-operative Insurance Society v Argyll Stores (Holdings) Ltd [1998] AC 1 at 9-10; [1997] 2 WLR 898 and Beardmore v Barry 1928 SC 101; 1928 SLT 143.

10 Marianski v Jackson (1872) 9 SLR 80.

11 Middleton v Leslie (1892) 19 R 801 at 802 per the Lord President; see also Fleming & Ferguson Ltd v Paisley Magistrates 1948 SC 547 at 557 per Lord Cooper, 1948 SLT 457; D M Walker Civil Remedies (1974) at p 270; McBryde, Contract (n 7) para 23.13 and 23.14. The need for precision was thoroughly re-examined in Retail Parks Investments v Royal Bank of Scotland (No2) 1996 SC 227, 1996 SLT 669, discussed below in relation to keep-open obligations.

12 The case law is extremely sparse and often lacking in depth or detail, but see, for example, Renfrew District Council v McGourlick 1987 SLT 538 (an attempt to enforce a local authority’s repairing obligations by utilising the statutory nuisance provisions, but in which Lord McCluskey analysed at some length the problems of specification attending a decree ad factum praestandum in this context); Traynor v Monklands District Council 1988 GWD 8-327; Gunn v Glasgow District Council (1990) 1 SHLR 213; Nicol v Glasgow District Council (1990) 1 SHLR 229 (The single volume of Scottish Housing Law Reports (SHLR) was published jointly in 1991 by Shelter (Scotland) and the Legal Services Agency. Gunn was successfully appealed to the Inner House, but only on the issue of damages – see 1992 SCLR 1018). For a useful discussion of the legal problems encountered in the housing sector see M Dailly “The Law of Specific Implement” (1993) SCOLAG 102.

13 See Postel Properties Ltd v Miller and Santhouse plc 1993 SLT 353 at 357 per Lord Sutherland.

14 Grosvenor Developments (Scotland) plc v Argyll Stores Ltd 1987 SLT 738.

15 1996 SC 227; 1996 SLT 669.

16 Ibid 1996 SLT 669 at 678 per Lord McCluskey.

17 See E McKendrick, “Specific Implement and Specific Performance – A Comparison” 1986 SLT (News) 249; McBryde, Contract (n 7) para 23-09.

18 Walker, Civil Remedies (n 12) 276.

19 [1998] AC 1; [1997] 2WLR 898.

20 1998 AC 1 at 13 per Lord Hoffmann. For a general discussion regarding the competence of specific performance to enforce repairing obligations in England, see Rainbow Estates Ltd v Tokenhold Ltd and Another [1999] Ch 64.

21 1997 SLT 1052; 1997 SCLR 835.

22 1997 SLT 1052 at 1055.

23 2000 SC 297; 2000 SLT 414

24 2003 GWD 17-540.

25 Ibid at para 6.

26 2005 SCLR 958

27 Act of Sederunt (Sheriff Court Ordinary Cause Rules) 1993, SI 1956. For a discussion of this procedure see T Welsh (ed), Macphail’s Sheriff Court Practice, 3rd edn (2006) para 13.27-13.34.

28 (1878) 5 R 909; see also Brock v Buchanan (1851) 13 D 1069.

29 (1878) 5 R 909 at 911 per the Lord President.

30 (1888) 15 R 776.

31 1919 35 Sh Ct Rep 78; see also Maclagan v Marchbank (1911) 2 SLT 184; (1911) 27 Sh Ct Rep 282.

32 McFarlane v Crawford 1919 35 Sh Ct Rep 78 at 79 per Sheriff Welsh.

33 Welsh, Macphail (n 28) para 13.29.

34 Re-enacting s 91 of the Court of Session Act 1868. The cases quoted below relate to the 1868 Act. For an example of a petition under the 1988 Act see Magnohard Ltd v United Kingdom Atomic Energy Authority 2004 SC 247, 2003 SLT 1083. For a general discussion of this remedy see Walker, Civil Remedies (n 12) 271-74.

35 Carlton Hotel Co Ltd v Lord Advocate 1921 SC 237 at 246 per Lord Dundas, 1921 1 SLT 126. Regarding the comparison with mandamus, see also Sons of Temperance Friendly Society, Petitioners 1926 SC 418 at 426 per Lord President Clyde, 1926 SLT 273.

36 In this regard see also Fleming & Ferguson Ltd v Paisley Magistrates 1942 SC 547 at 557 per Lord Cooper; 1948 SLT 457.

37 Housing (Scotland) Act 2006 ss 13 (1)(a) and 14 (1) (private sector tenancies); Housing (Scotland) Act 2001, Sch 4, para 1 (social tenancies).

38 T Docherty Ltd v Monifieth Burgh Council 1970 SC 200, 1971 SLT 13.

39 Sons of Temperance Friendly Society, Petitioners 1926 SC 418, 1926 SLT 273.

40 Walker Civil Remedies (n 12) 272. However, Professor Walker cites no authority in support of this view.

41 Court of Session Act 1988 s 51.

42 Mostly assured and short assured tenancies under the Housing (Scotland) Act 1988, but also a diminishing number of regulated tenancies under the Rent (Scotland) Act 1984. For a general description of these and a brief historical background see McAllister Leases (n 1) para 17.1-17.4

43 Housing (Scotland) Act 2006 ss 13 and 14.

44 Ibid s 13(1)(a).

45 Housing (Scotland) Act 2006 s13(1)(b)-(f).

46 Ibid s 22.

47 Rent (Scotland) Act 1984 sch 4, paras 5 and 6 (as amended).

48 See the website of the Private Rented Housing Panel, available at www.prhpscotland.gov.uk.

49 Housing (Scotland) Act 2006 s 24.

50 Ibid s 28.

51 Ibid (Commencement No. 5, Savings and Transitional Provisions) Order 2007, SSI 270.

52 Reports of the decisions of the private rented housing committees can be found on the Panel’s website, available at www.prhpscotland.gov.uk.

53 Cameron v Todd, 21 May 2014, reported at www.prhpscotland.gov.uk.

54 Housing (Scotland) Act 2006 ss 64(4).

55 1998] AC 1; [1997] 2WLR 898.

56 1998 AC 1 at 13 per Lord Hoffmann.

57 Problems thoroughly examined in P D Brown and A McIntosh Dampness and the Law (1987).

58 See for example the leading English case of Summers v Salford Corporation [1943] AC 283, [1943] 1 All ER 68.

59 Scottish Executive “Model Scottish Secure Tenancy Agreement” (revised version July 2002), available at www.scotland.gov.uk/publications.

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