Disrepair - the rights and duties of landlords and tenants

Historically tenants have had a bad time of it like it or not.  People were forced to pay rents on properties which were in various states of dilapidation and had no way of either compelling the landlord to repair or of being reimbursed if they did the works themselves.  The tenant's bargaining position was weak.

Landlords, because they did not have to, would not enter into agreements which required that repairs be done by them.  If the tenant wanted the landlord to be responsible for repairs and tried to insist on a repairing term in the tenancy, the offer of tenancy would be withdrawn and all the lessor had to do was wait until another person, perhaps more desperate than the last came along and would accept the tenancy agreement without such a term.

This article lays out the main repairing obligations of landlords.  Now that the landlord's duty to repair is now defined by statue, reliance on the common law has become less necessary.

Statutorily Implied Terms

The Landlord and Tenant Act (LTA) 1985 makes it impossible for landlords to avoid repairing obligations and it is one of the few pieces of legislation which had retrospective effect because it applies to tenancies entered into after 1961.  The Housing Act 1985 sets out the principal definition of unfitness for human habitation and puts the burden on local authorities and not on the tenant, to deal with the matter.  The Defective Premises Act 1974  allows people other than tenants to sue for disrepair.  The common law actions of nuisance and negligence have also proved to be of application in the area of disrepair.  The Environmental Protection Act 1990 has defined what will amount to a statutory nuisance which is now a criminal offence dealt with in the Magistrates Court.  These are the major provisions in respect to disrepair in residential property.

The Landlord and Tenant Act 1985 section 11

This provision is implied into all tenancies of less than seven years duration entered into after 24 October 1961 and imposes an obligation on landlords to effect basic repairs which is absolute.   Section 11 cannot be excluded from any residential tenancy and a landlord cannot negotiate with the tenant that section 11 will not apply to the tenancy.  If the landlord did this and the tenant then chose to pursue a section 11 disrepair the court would not recognise that agreement.  If there is an express term in the tenancy agreement to repair and it falls short of section 11, the whole of section 11 will be implied into the agreement.  Section 11 also applies to longer tenancies in certain circumstances, and states that the landlord must:
a) keep in repair the structure and exterior of the dwelling, including drains, gutters and external pipes,
b) keep in repair and proper working order the installations in the dwelling for the supply of water, gas, electricity and for sanitation (including basins, sinks, baths and sanitary conveniences but not other fixtures, fittings and appliances for making use of the supply of water, gas or electricity, and
c) keep in repair and proper working order the installation in the dwelling for space heating and heating water.

However, if the tenant is in breach of her/his duty to behave in a tenant-like manner the landlord will not be responsible for any works or repairs because of that breach.  For example if the tenant decides to put in central heating without permission and damages any existing plumbing or the structure of the building, the landlord will not be responsible for putting the matter right.  The landlord will also not be responsible for rebuilding or reinstating the premises if destroyed by fire, tempest, flood or other inevitable accident, or be responsible for keeping in repair or maintaining anything which belongs to the tenant.

Structure and exterior

Section 11, LTA 1985 only makes provision for disrepair to the structure or exterior.  Thus damage  or disrepair that is not structural will not be covered.  A claim by a tenant to a landlord as a result of an attack of black mould in a property was rejected by the courts1  as the damage was as a result of condensation and did not directly result  through any disrepair.  In addition, defects of the structure (inherent defects) resulting from bad design, such as condensation dampness caused by a design defect, will not be covered(2) .

'Exterior', for the purposes of s.11, is the outside or external parts of a dwelling, but does not include items such as outside paving, garden walls and gates etc.  While 'structure' covers more than structural defects, in the sense of those which hold the dwelling together, it does not include purely decorative items nor probably those such as internal plaster, skirting boards, internal doors etc.(3) although these may well be affected by other items of disrepair and, if so, will be caught by the duty to make good.

Standard of Repair

The standard of repair required is determined by the age, prospective life, character and location of the premises.  If for example the building is soon to be demolished the standard of repair required will be low.  A tenant must bring an action in breach of any express or implied term within 6 years.

Notice

The landlord's obligations will not arise until s/he has been given notice of the defect. This does not extend to common parts, or facilities which are mentioned in section 11 but which are outside the premises, for example damage to a gas main in the road. However it is no defence to show that a facility is defective because of a design fault(4).  In such a case the landlord would have to pursue an action against the manufacturer in order to recoup any damages paid out by the landlord to the tenant.
Under section 11, it is not until this notice of the disrepair has been received that the landlord's liability will commence.

Once the notice is given, the landlord has a statutory right to enter, at a reasonable time of day, to view the condition and state of repair giving the tenant 24 hours notice in writing.  The repairs must then be done within a reasonable time.  "Reasonable time" will be judged by the type and extent of the disrepair.  The bigger and more expensive the repair necessary the longer the time period would probably be.  Note however that where the repair necessarily is in the nature of an emergency "reasonable time" may be very short indeed regardless of any other considerations.

A tenant will have to prove they have given notice of disrepair if they decided to pursue a claim.  Usually copy letters or if verbal notice was given, copy letters from the landlord agreeing to execute works.  Notice can also be shown if a surveyor or other agent of the landlord has been employed to inspect the premises.

Common Parts

In leases entered into after January 1989, the structure and exterior of a building in which a flat or room is situated, or a part of it, and any common facilities within it, have also to be kept in repair.  This is even when such facilities are not within the flat or room itself.  This is only the case however where the defect is such as to affect the tenant's enjoyment of the premises or of the common parts such as they are entitled to use, for example a hallway or stairs.  If the landlord has no control over the common parts the tenant would then have to pursue such an action against that person who does have control.
If remedial works necessitate access to parts of the building or installation over which the landlord does not have a sufficient right to gain access, it is a defence to an action for breach of section 11 to show that s/he made all reasonable efforts to gain access but has been unable to do so.

HMOs

Owners and managers of HMO's have additional statutory duties with regard to safety and disrepair.  These duties are defined by the Housing (Management of Houses in Multiple Occupation) Regulations 1990 and summarised in the inset box.  The duties apply to both managers and residents of HMO's and either could be prosecuted if found in breach of duty to maintain the dwelling in good and safe working order.

Defective Premises Act 1972 Section 4

A lessor is responsible for damage caused by a "relevant" defect which s/he is responsible for and has failed to repair or maintain.  "A relevant defect is one arising from or continuing because of an act or omission by the landlord which actually constitutes a breach of his repairing obligation or which would have done so if he had been given notice of it" (5).  The duty arises at the date the property is let and therefore the tenant is not required to give notice of the defect - liability may be established in respect of defects of whose existence he knew or ought to have known.(6)

If a power to enter and inspect is not contained in the tenancy agreement the court will imply one in order to make sense of the obligations. After all, there is no point in implying a maintenance and repair covenant if the necessary power to enter and inspect is not present. Damages under this section can be recovered not only by the tenant but by  "all persons who might reasonably be expected to be affected by defects in the premises"  and extends to damages for personal injury  or damage to their property.  Therefore any visitors to the property can also sue.

Section 604 Housing Act 1985

The principal purpose of section 604 of the 1985 Act is to allow local housing authorities to serve a "repair notice" on the "person having control of the house".  requiring that person to execute specific works to make the dwelling fit for habitation
The principal definition of unfitness(7) is found in this section of the act.  Under this section accommodation is fit for human habitation if it is structurally stable, free from serious disrepair, free from damp prejudicial to health, has adequate provision for lighting, heating and ventilation, has an adequate supply of wholesome water, has satisfactory facilities for preparing and cooking food (including a sink with hot and cold water), has a suitably situated WC, has suitable fixed baths or showers and wash hand basins with hot and cold water and has an effective system for draining of foul waste and surface water.
If the accommodation is a flat the condition of the building is also to be taken into account.

The local authority once it has decided the premises are unfit have to take one of three courses of action.  They can either serve a repairs notice requiring the landlord to execute repairs and if not done, to enter and repair the property, or serve a demolition order or closing order. The local authority will refer to the Guidance issued by the Department of the Environment (DOE Circular 6/90, Annex P).  This suggests that the property should be looked at in the broader context of its surroundings, and that as well as economic factors, social and environmental ones should also be taken into account.

The Environmental Protection Act 1990

Here again the burden lies with the local authority rather than the tenant to force the landlord to execute repairs under section 79.  A statutory nuisance means "any premises in such a state as to be prejudicial to health or a nuisance."  Prejudicial to health is defined as 'injurous or likely to cause injury to health' (s79(7)).  This includes actual and potential ill health, and mental as well as physical health.  However, mere interference with comfort is not enough.  Serious dampness or condensation is recognised as being capable of being prejudicial to health.(8)  'Prejudicial to health' is determined by Environmental Health officers and doctors.

Nuisance at common law allowed one occupier to sue another if anything happening in the first property which affected the second, for example, water leaking from one flat into another or noise.  The occupier of the second flat could sue the occupier of the first.  The principle still applies and must be satisfied in order to found a statutory nuisance claim.
The local authority once satisfied there is a statutory nuisance will issue an abatement notice saying what must be done and when it should be done by.  There is a right of appeal.  If an appeal is lost and such a notice is not complied with criminal prosecution follows or the local authority can enter and do the  works themselves.

The Common Law - Nuisance and Negligence

Briefly, the common law tort of nuisance can still apply in a civil setting and is actionable in damages.  The principals are outlined above but prejudicial to health is not a requirement and the matter is dealt with in the County Court and not the Magistrates.  Any compensation awarded by the Magistrates in statutory nuisance is deducted from damages awarded in a civil claim.  Negligence occurs when work may have been done but has been done so badly as to render the repair ineffective or to have made the matter worse, and/or has damaged the tenant's possessions.  This is a large area of law and outside the scope of this article.

Health and Safety at Work Act 1974

The Gas Appliances (Installation & Use) Regulations were introduced under the Health and Safety at Work Act 1974.   Already covered in detail in previous issues of Letting Update (LUJ Oct '94, & Letting Factsheet 7), the regulations impose significant new obligations on landlords and agents with respect to the safety and maintenance of gas installations and appliances. 
In summary, the regulations require:

1) GENERAL SAFETY.  Appliances should be safe. Work on gas appliances and fittings shall only be carried out by a qualified gas fitter (i.e. CORGI registered or equivalent)

2) PERIODIC INSPECTIONS.  Landlords and letting agents must ensure that all gas appliances in rented property are checked for safety at least once every 12 months and keep a record of such checks, dates of inspection and any defects noted.

3) FLUES.  All flues should be correctly fitted.  No open flue appliances to be installed in bedrooms or bathrooms.

4) INSTRUCTIONS.  Instruction booklets should be available for all gas appliances.

Quiet Enjoyment

This is implied into all tenancy agreements and anything at all which breaches quiet enjoyment is actionable in damages.  If a disrepair matter does not come within any of the above provisions but which is enough in itself to have caused inconvenience or disturbance and it is something which has occurred because of any act or omission of the landlord, the landlord can be sued for this breach.  It is highly unusual to find that this is the only cause of action.  It is often added to the pleadings in a disrepair action as a matter of course since disrepair of itself will be a breach of quiet enjoyment.

Furniture and Appliances

Although the law is not clear on the point, it is generally accepted that landlords are responsible for maintaining any furniture, appliances or other items supplied as part of the 'package' for the benefit of the tenant.  The recent demands made of landlords with regard to furniture, furnishings and electrical appliances will inevitably lead to much furnished accommodation being withdrawn from the market or replaced with unfurnished lettings.

Furniture in the strictest sense requires little maintenance, whereas cookers, washing machines and general electrical appliances will require occasional maintenance and repair.  When they break down, it is reasonable for the tenants to expect landlords to be responsible for repairs or replacement unless it can be shown that the failure or damage has occurred through the tenant's negligence or other misuse.  Where repair is not possible, it would be expected that  an equivalent replacement would be supplied.

The exception to the above rule is where the landlord has made a prior agreement with the tenant that such items will not be repaired or maintained in this way.   The solution being adopted by some landlords and agents is to ask tenants to contribute (either partially or otherwise) to the costs of maintenance and repairs on such items.  From a liability point of view, landlords are now well advised to minimise the number of appliances included in rented property.

Other Disrepair Liabilities

Disrepair liabilities may not be immediately evident; there are other implications of disrepair which must be considered by the prudent landlord.  Many windows and doors in dwellings are now fitted with various locks and other security devices.  Disrepair of these items could be instrumental in a property being broken-into and thus be a breach of the landlord's repairing obligations and a breach of a duty of care(9).

Express Terms

It is important to note that an express provision to 'repair and maintain' which has been added to a tenancy agreement confers additional repairing duties on the landlord.
Many residential leases and tenancy agreements make express provision for those repairs that the landlord covenants to undertake (e.g. structural and exterior repairs) and those which are the responsibility of the tenant (e.g. decorating and damage caused by the tenant). 
The addition of a covenant to 'repair and maintain' the property will increase the liability of the landlord over and above the s11 LTA obligations.  The covenant to maintain infers that the landlord ought to have known about any disrepair (i.e. via a regular maintenance programme) and notice of  disrepair will not need to be given before a tenant can claim breach of duty.

Tenant's Obligations

Under common law, a tenant must take proper care of the property and use it in a responsible way.  For example, a tenant is expected to turn off the water if there is a risk of burst pipes when he is going away, and unblock the sink when it is clogged up by waste.  He should not damage the property and should make sure that his family and guests do not so.  If they do, he may be responsible for the damage.  Under the Rent Act 1977, the Housing Act 1985 and the Housing Act 1988, the landlord can seek possession where a tenant or someone living with him has damaged the property.

Damages

The primary remedy lies in damages.  Substantial amounts can be paid out where there has been serious disrepair over a long period.  Tenants can claim between £1000 to £1500 per annum for distress and inconvenience and an amount for diminution in value or loss of amenity.  This is calculated as a percentage loss in the whole premises. For example the loss of use of one bedroom in a four bedroom house could be assessed as 25% of the rent over the period of the disrepair.
You may remember the case in March and Parrish v Leslie which we reported in the October 1994 issue at page 19, where the tenant was awarded diminution of value assessed as 50% of the contractual rent and damages for distress and inconvenience of £800.  Special damages were also paid of £430.  The disrepair in the case was severe and lasted for months.  Special damages are those awarded for damage to goods.

Pests

Generally, there is no obligation on the landlord to ensure that the property does not become infested with pests(10) unless the infestation is as a direct result of the landlords failure to repair or if it could be proven that the infestation arose  from any common area under the control of the landlord. There is an exception to this rule.  Where a property is found to be infested prior to the occupation of the tenant, then the tenant has the right to reasonable enjoyment of the property, and this would include expecting the landlord to take teps to remove the pests, or allow the tenant to give early notice(11).  The courts justified this exception on the basis that a prospective tenant of furnished premises did not have unimpeded freedom to inspect those premises to see the nature and quality of everything that he was getting.

Conclusion

A stitch in time..... is hackneyed phrase but was never more applicable than to matters of disrepair.  If in doubt as to your obligations take  advice as soon as possible, don't wait until you have been served papers by the tenant.

 

 

References
1.  Quick v Taff Ely BC [1986] QB 809
2.  Stent v Monmouth DC (1987) 19 HLR 269 CA
3.  Irvin v Moran (1992) 24 HLR 1, QBD
4.  Liverpool CC v Irwin 1976. AC [1977]
5.  Arden and Hunter
6.  Smith v Bradford MDC (1982) 4 HLR 86
7.  Summers v Salford 1943.  Lord Atkin said in his judgement, "If the state of repair of a house is such that by ordinary use damage may naturally be caused to the occupier, whether in respect of personal injury to life and limb, or injury to health, then the house is not in all respects reasonably fit for human habitation."
8.  GLC v The London Borough of Tower Hamlets 1983.
9.  Irvine v Moran (1992) 24 HLR 1. 
10.  Habinteg Housing Association v James (1994) EGCS 166
11.  Smith v Marrable   [1843]11  M&W 5