Disrepair is an important subject for landlords and agents to understand fully since tenants frequently report breakages and maintenance problems. It is vital that the landlord is aware of the statutory, or agreed, repairing obligations for a particular tenancy. As we can see from the case examples below, reasonable expedience is vital once disrepair has been reported; significant liability can accrue to the landlord if such disrepair is not acted on and subsequently causes serious injury to the tenants. Furthermore, landlords in many cases will not want to incur unnecessary expense in maintaining or improving the rented property at the whim of an individual tenant's complaints if there is no contractual or legal obligation to do so.
As we shall see, in what appears to be a very grey area, it is generally possible to make a clear decision when the legal rules relating to disrepair are combined with some basic technical knowledge of the common disrepair problems.
The main responsibilities of the landlord are defined by the Landlord and Tenant Act 1985, so it is now impossible for landlords to avoid their obligations relating to disrepair. Generally, terms are implied by statute into periodic tenancies or leases of less than seven years that the landlord will be responsible for repair of:
- the structure and exterior of the building
- basins, sinks, baths and other sanitary installations in the dwelling, and
- installations for heating water and space heating in the dwelling
These obligations are set out in full in section 11 of the Landlord and Tenant Act 1985 and are known as implied terms, as opposed to the terms expressly included in the contract by the parties.
The general rule is that the landlord is only liable to carry out repairs to defects that he should have known about. Once he becomes aware of them, such as being notified by the tenant or another person, the duty to repair arises and he must repair the defect within a reasonable time.
Where the landlord has not carried out his repairing obligations the tenant is entitled to take legal action against the landlord. The court can award damages and order the repairs to be done.
There are many other areas which are not covered by statute, and here it can be difficult for landlords and tenants to discover who is responsible for which repairs. The basic principle in these unspecified cases is that, in the absence of express agreement between the parties, neither party is legally responsible for any items of disrepair outside the main statutory obligations.
Tenants also have repairing obligations. There may be express repair requirements in the tenancy, and a term is also implied into tenancy agreements that the tenant will maintain the property in a ‘tenant-like’ manner. This is a common law obligation to use the property in a responsible way, and requires the tenant to take proper care of it. A tenant should not damage the property, and should ensure that his visitors also do not. The landlord may be able to obtain possession of the property where the tenant or someone living with him has damaged the property (Housing Act 1988, Grounds 13 and 15).
Part 1 of the Housing Act 2004 contains provisions intended to replace the previous housing fitness regime which applies both to single residential dwellings and Houses in Multiple Occupation (HMO).
The previous Fitness Standard has two perceived failings. It did not cover all the major problems found in a home (e.g. such as the risks from falling down unsafe stairs), and does not give any indication of how serious the problem is. Under the existing fitness provisions, the test of fitness is to be replaced with an evidence-based risk assessment process; an assessment of the risks to health and safety will be carried out using the new Housing Health and Safety Rating System (HHSRS).
Because the risk-assessment is based on a points-based hazard-scoring or rating system (rather than the simpler pass or fail standards used in the majority of the previous system), it is going to be much more difficult for an individual landlord or property manager to interpret and understand precise legal requirements and determine in advance whether a particular property complies with the standard. This is a worrying facet of the new law given that non-compliance is, yet again, a criminal offence with onerous penalties.
The main product safety legislation, which is defined by regulations (or secondary legislation), were introduced under the following Acts of Parliament (or primary legislation):
- Health and Safety at Work Act 1974
- Consumer Protection Act 1987
The regulations relevant to the lettings industry are:
The Gas Safety (Installation and Use) Regulations 1998
The Gas Cooking Appliances (Safety) Regulations 1989
Heating Appliances (Fireguard)(Safety) Regulations 1991
Gas Appliances (Safety) Regulations 1995
Furniture & Furnishings (Fire)(Safety) Regulations 1988 (as amended)
Other Safety Regulations
General Product Safety Regulations Bunk Bed (Entrapment Hazards)(Safety) Regulations 1987
Regulations for paraffin heaters Regulations for Catalytic Gas Heaters
All the regulations may incur criminal penalties where there is an infringement.