Landlord and Tenant Rights and Obligations

Whether you are a landlord of a commercial property, or you are a tenant leasing a business premises, you need to be aware of your rights and obligations. In Scotland these are defined within the terms of lease, and so seeking advice from a legal expert before you sign a contract is essential. If you fail to do so, you could get stuck in a contract with unfavourable terms, which could prove costly both in terms of time and money.

Statutory Rights.

In Scotland, commercial leases focus upon the contract between landlord and tenant. As such, the rights and obligations of each party are largely confirmed within the lease, rather than within the law. This system is, therefore, vastly different from England and Wales where the Landlord and Tenant Act 1954 offers a certain security for landlords and tenants alike.

However, there are times when common law applies to the leasing of commercial property. In particular, a landlord must ensure the building is fit for occupation before it is handed over to a tenant. It must be wind and watertight and any defects must be repaired, while health and safety issues also need to be addressed (including electricity, gas, asbestos management and fire safety).

Terms of Lease.

The rights and obligations of both landlord and tenant are decided within the terms of a lease, meaning every leasehold agreement will differ. That is why it is vital to seek legal advice before signing a contract; otherwise there may not be a fair balance between the interests of landlord and tenant.

A solicitor will be able to help you negotiate the terms of the lease, within which you will need to consider:-

Length of term.

You need to decide whether you want enter a lease for the short-term or the long-term. The maximum amount of time is 175 years.

Use of Property.

Set out exactly what business purpose the property is to be used for.

Rent and rent reviews.

Negotiate how much rent is to be paid, how this is to be regulated, and how the amount of rent is likely to change over time.

Repairs, maintenance and dilapidations.

Be clear as to who is responsible for repairs and maintenance. Often a tenant is liable for those internally, while a landlord is accountable for those externally. It also needs to be agreed who should pay for any repairs when the lease expires (called dilapidations).

Service charges

A tenant needs to be informed of what service charges are to be incurred (such as payment for maintenance of common parts, footpaths and cleaning bills) and whether these can be sourced for themselves.

Assignment, subletting and termination.

Decide upon ways the lease can be ended before the specified date. This could include break clauses, as well as an agreement upon conditions for assignment and subletting.

Security of tenure/Lease end protection.

A tenant needs to outline their rights to renew their lease, securing their entitlement to continue using the property should they wish.

Health and safety checks.

Under the Health and Safety Act 1974, landlords and tenants must plan whose duty it is to meet health and safety checks (such as gas inspections, ensuring adequate ventilation and maintaining electrical wiring.)

Need specialist Edinburgh Property Solicitors? McKay Norwell are Edinburgh Solicitors serving individual and business clients across Scotland

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Personal Injury Defendant: The Landlord - Tenant/Visitor Liability Situation

"I am renting my home. Last month, my neighbor fell on my sidewalk and was injured, but I am being sued for it. My landlord refused to fix the sidewalk that caused the fall, so shouldn't he or she bear the responsibility? Shouldn't the neighbor sue him instead of me since I don't even own the place?"

Unfortunately, many U.S. renters do, since so many are sued for something that happened within their rented homes or on the rented common property, whether they own it or not. While a landlord has liability insurance to cover any suit brought against him or her to cover injuries and other damages, called Tenant Landlord Insurance, the issue then becomes how can the renter prove that the landlord is at fault and that the landlord's negligence caused the issue so the renter is not responsible?

When brought to court, a landlord is typically found responsible if the circumstances meet the following requirements:

If the landlord is required by the lease or local laws to maintain the sidewalk. In most states, the landlord is required to maintain common areas, even if it is written into a lease that the renter is responsible for them because state and local laws trump a lease. In fact, in some states, it is illegal to require that the tenant be responsible for common areas such as a sidewalk.
If the landlord knew about the sidewalk needed repairs and failed to make them, or if the repairs needed would have been simple to fix, and the lack of proper repairs caused the injury, then the landlord is responsible, not the renter. For example, if the renter alerted the landlord that the sidewalk needed repairs, but the landlord refused or simply neglected to make them, and days or weeks passed, the landlord is responsible.
If the landlord neglected to take precautions to prevent injury knowing that an accident or injury was probably, and might happen, then the landlord is responsible. For example, if the landlord knew the sidewalk needed repairs and knew it could cause an injury, but then neglected to put up a warning sign, or otherwise warn visitors to the property or people walking on the sidewalk, and someone fell and was hurt, the landlord is responsible.
If the person who fell or was otherwise injured is genuinely hurt and not faking it, and the visitor or tenant can prove it was the sidewalk that caused his or her to fall, and all other conditions are proven, the landlord is responsible.

If you are a tenant, and you are being sued for someone's injured they acquired on your sidewalk, or other area in the home, then you may in fact have to appear as a defendant to prove that you are not responsible for the fall and resulting injury. However, if you can prove that the landlord is responsible as per the conditions listed, then the case will most likely be dismissed and the injured person would sue the landlord and his or her insurance company to recoup his or her monetary losses.

Mary Sharp is a partner with Griffith, Sadler and Sharp PA, who practices in the areas of automobile liability, premises liability, products liability, general tort liability, construction litigation and insurance disputes. For more information on Mary Sharp Beaufort, visit Griffith, Sadler and Sharp, PA.

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