Property Hazards - understanding the statutory obligations

The idea for this article on property hazards arose following correspondence sent to us regarding a rented property with a swimming pool. The writer was being asked to advise the landlord what precautions needed to be taken where a rented property included a swimming pool. If anything were to happen to the tenant (or more likely, the tenant's young children) would the landlord be liable? Did the landlord need to erect a fence around the pool, or attach warning signs nearby? In order to understand the landlord's obligations regarding any particular hazard in any given circumstances, it is important to understand the current legislation that applies to defective premises and property hazards.
In the last article, we looked at the common law concept of negligence and the duty of care. In this issue, we will look at the landlord's statutory duties relating to the state of the premises - i.e. those imposed by the specific Acts of Parliament.

Implied terms

The terms of the tenancy agreement are clearly the starting point for any examination of the landlord's duties regarding the state of the demised premises. It will come as no surprise in today's consumer-driven environment that legislation dictates terms that will be implied into this agreement. The most widely understood of these are those imposed under section 11 of the Landlord and Tenant Act 1985. These require the landlord to keep in repair the structure and exterior of the property, and in repair and proper working order the installations for the supply of essential services including those associated with space heating and heating water. These duties, although extensive, are generally straightforward and were discussed in detail in an earlier LUJ article(1).

With the exception of cases which can be brought within the Defective Premises Act 1972 (below) and obligations in respect of common parts, almost all these repairing obligations require (expressly or by implication) that the landlord has knowledge of disrepair within the demised property before any liability arises. Landlords who breach these repairing obligations can become liable for a claim in damages from the tenant.

Defective Premises Act

Whilst the main statutory repairing obligations operate solely to protect the tenant, section 4 of the Defective Premises Act 1972 (DPA) imposes on landlords a duty of care to '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.

One of the purposes of the legislation was to give third parties such as visitors, passers-by (or even trespassers) a right of action against landlords in respect of defects in the premises. Therefore, damages under this section can be recovered not only by the tenant but also by any visitors to the property.

A lessor is responsible for damage caused by a 'relevant defect' for which they are responsible and have failed to repair or maintain. The Act defines 'relevant defect as"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"(2).
The Defective Premises Act generally imposes no greater repairing duties on a landlord than those imposed under the landlord's statutory repairing obligations under section 11(3) - and so actions are rarely brought by tenants under this legislation.

Knowledge of defect
At common law, it is very rare that a landlord can be held liable for disrepair in defective premises until he has been given notice of the disrepair. However, the wording under DPA is slightly different; the duty of care is owed if the landlord 'knows or he ought in all the circumstances to have known of the relevant defect'. So the landlord does not always need to have actual knowledge of the defect.

In Sykes v Harry, a landlord had negligently failed to service a gas fire regularly, and the tenant was made ill through carbon monoxide poisoning. The court held the landlord liable on the basis that he ought to have known about the defect.(4)

Right to access for repairs
Section 4(4) of the Defective Premises Act contains a somewhat obscure provision which allows the tenant to bring an action for disrepair where the landlord has an express or implied right to enter the premises to carry out repairs. Section 4(4) implies an additional duty on the landlord to maintain and repair parts of the premises where the landlord has reserved himself a right of access to these parts to carry out repairs. An example case best illustrates how this provision operates.

In McAuley v Bristol City Council(5), the tenancy agreement contained a term 6c which required the tenant to give the council's agents and workmen access to the premises "for any purpose which may from time to time be required by the Council". The tenant subsequently fell and broke her ankle on an unstable step situated in the garden of the property, and the tenant took action alleging that the council landlord was in breach of the duty of care imposed by section 4(1) of the Defective Premises Act.
The court held that the right of entry conferred on the council by condition 6c of the tenancy implied a right to carry out repairs to remedy defects in the premises which could be construed as including the garden - defects that might expose the tenant or visitors to the risk of injury. It should be stressed that this was a slightly anomalous situation invoked by the council's 'right of entry to carry out repairs clause'.

Section 4(4) excepted, the provisions of the Defective Premises Act do not impose a duty of care where there is no obligation to repair - and the statutory repairing obligations linked to the structure and exterior of the property do not extend to a duty to repair defects in the gardens and paths.
Landlords in the private sector would be well-advised against including this type of wording in their tenancy agreements. The net effect is two-fold:

• it can imply an additional repairing obligation into areas outside the main property - such as the gardens and paths, and
• the tenant can make a claim for damage or injury from defects at the property even though the landlord has received no notice of the defect.

The glass door
The scope of the Defective Premises Act has been considered more recently in Alker v Collingwood6 and provides useful guidance on hazardous fixtures within a property.
In this case, the claimant had suffered injury as a result of glass breaking in her front door. The panel was fitted with ordinary glass rather than safety glass which is a requirement under current building and glazing regulations. The court accepted that, although the property had almost certainly been constructed in accordance with the building regulations in force at the time, it has been known since at least 1963 that ordinary glazing in this situation constituted a safety hazard.

The tenancy agreement contained an express obligation to keep the house in good condition and to repair and maintain the structure and exterior of the property. The tenant had claimed under section 4 of DPA, and the Court of Appeal was required to consider whether the unsafe glazing in the front door was a 'relevant defect'. It was established that the door was not in disrepair - there was no damage or deterioration to the door prior to the accident, and so the landlord argued that section 4 did not apply. It was also accepted that the obligation to keep the property in 'good condition' imposed an obligation that went beyond just repair, and so it was argued by the tenant that this required the landlord to make the door safe.

In what is a useful ruling for all landlords, the Court ruled that DPA section 4 did not create an obligation on the landlord to keep the premises safe - this went beyond what Parliament intended and would require landlords across the country to undertake significant improvement works to bring properties up to modern building standards. It was also held that the covenant to keep premises in good condition does not include an obligation to put the property into a safe condition.

Window locks
A tragic fire claimed the lives of three children in an incident that took place in the 1990s, in a council let property. The landlord had installed double-glazing with locks that had removable keys. The claimant's family had kept the windows locked as a safety measure and hung the key in the kitchen. In the course of a fire, the family had been unable to escape through the locked windows. The case was heard by the Court of Appeal who held that the landlord was not in breach of the duty of care - even though they were the designers and builders of the dwelling (which carries an additional duty of care). The council was to be judged according to the standards of the reasonably skillful window designer and installer at the date of installation and the court held that currently, button locks and key locks are not negligent choices for window security. The design of the windows did not oblige the local authority to install a smoke alarm.(7)

So the installation and use of window locks, although posing an additional hazard to the tenant's means of escape from file, remains largely a matter of choice to the individual landlord or tenant. Some occupiers prefer to keep windows at a high level locked to prevent the risk of falls and serious injury to children. Although not mandatory, best practice suggests that the hazards of window locks, where fitted, should be explained to any incoming tenants (especially where there are young children living at the property) and smoke detectors installed.

Occupiers' liability

As with the Defective Premises Act, cases under the Occupiers Liability Acts (OLA) are not common but the provisions are occasionally used in claims brought by tenants. There are two acts that affect landlords and occupiers.
The Occupiers Liability Act was introduced in 1957 to regulate the duty which an occupier of premises owes to his lawful visitors in respect of dangers due to the state or condition of premises, or to things done or omitted to be done on them. A further Occupiers Liability Act(8) was introduced in 1984 which extended the duties to unauthorised visitors - such as young children who might be harmed by potential hazards on land (e.g. railways).
The Acts also contain provisions that will apply in specific types of letting situations where the landlord retains control of common areas (e.g. blocks of flats). They operate by attaching obligations to the 'occupier' of a property, and impose a duty of care to see that visitors (to the property) are reasonably safe(9).

Who is the occupier?
The duties under the Occupiers Liability Acts attach to the occupier of the land. 'Occupier' for the purposes of the Act means the person who occupies or has control of the premises.(10)

Tenants in exclusive possession
A tenant who has exclusive possession of the demised premises is an occupier within the meaning of OLA 1957. The landlord, having given up exclusive possession, cannot therefore be under a duty of care to either the tenant or his visitors. Accordingly, hazards to the tenant's visitors remain firmly in the domain of the tenant in these situations.
So, as the law now stands, the landlord can remain relatively immune from potential hazards such as a swimming pool in the garden of a private house (more on this later). 'Visitor' is a broad term which covers any person to whom the occupier has given implied or express permission to enter. The common duty of care is 'a duty of care to take such care as in all the circumstances of the case is reasonable, to see that the visitor will be reasonably safe for the purposes for which he is invited or permitted by the occupier to be there.' (11)

Warning notices
The Act does not introduce any obligation to erect warning notices in the vicinity of a hazard. The law recognises a principle of proportionality whereby the need to provide warnings of hazards would depend on the circumstances.
Public bodies and business will often be expected to erect warning signs to alert visitors to hazards on their premises (e.g. to draw attention to deep water areas in a public swimming pool) because they provide public access to their land. Private residential occupiers, on the other hand, will only have visitors in more limited and restricted circumstances and are not generally expected to erect equivalent warning signs.

Even where public access is allowed, the courts have sensibly ruled that visitors must take some responsibility for their own safety. A man tragically died whilst swimming in the pond of a National Trust property. The court held that, in the circumstances, there was no obligation on the National Trust to erect warning signs - the risks would have been obvious to any competent swimmer. The court sensibly recognised that, if their ruling had gone against the landowners, warning notices would have to be put up beside every pond, reservoir, river bank and stretch of coastline(12).

Common parts
Complication and liability arises under the Occupiers Liability Acts when the landlord retains control of common parts of the building - for example the entrance hall, staircases, lifts, roof etc. in a block of flats or similar shared living arrangements. The landlord then will be an 'occupier' in the terms of the Act, and will be under the common duty of care set out in the Act. Landlords, in these situations, have incurred liability for injury resulting from broken steps or missing handrails. Under OLA, the tenant and his family or friends become 'visitors' to these common parts of the building and the landlord will owe them a duty of care under the Act.

In a recent case(13), a claimant was visiting friends when she fell over the wall leading up to the front door of the premises, and down an eight foot drop to a basement area. There was no adequate guard rail to protect someone falling over the wall in this entrance area. The lady suffered paraplegia and successfully claimed against the landlord of the friends that she had been visiting.

Trespassers and the 1984 Act
The main purpose of the Occupiers Liability Act 1984 was to extend similar protection provided under OLA 1957 to persons other than lawful visitors i.e. persons entering land without the consent of the owner. The occupier will owe a duty if he is aware, or has reasonable grounds to know, of a danger on the premises and that a person may be in the vicinity of the danger and the risk is a real one against which he may reasonably be expected to offer some protection. The occupier is only expected to take reasonable precautions where a hazard is foreseeable. Once again, the duty of care is proportionate to the circumstances.

In Siddorn v Patel, a landlord was held to be not liable where a tenant had been badly injured following a fall from a roof onto which the tenant had entered without permission (14).
The facts of this case were that Miss Siddorn had the tenancy of a first floor flat. The side of the flat abutted a garage which had a flat roof and two skylights covered by corrugated perspex. In the course of an evening party, the tenant and five or so other individuals had climbed out of the flat window and onto the roof of the garage - a roof which formed no part of the tenancy. Later in the evening, whilst dancing on the roof, the tenant stepped on the perspex skylight and fell through it sustaining injury.

Miss Siddorn sought damages for personal injury from the defendant landlord, Mr Patel. The tenant contended that the landlord had been negligent or in breach of their duty of care under the Occupiers Liability Act 1984 in that they had not ensured that the skylight had a safe or suitable cover, and had failed to warn her and the other tenants of the unsafe condition or nature of the roof, or warn them not to go out there.
The landlord contended that he was not liable as the premises did not come within section 1 of the Occupiers Liability Act because the danger to Miss Siddorn had arisen from an activity rather than the condition of the roof. Neither Siddorn or any other tenant had ever received permission to go on to the roof for any purpose.
The Court held that in the circumstances, the premises did not give rise to any proper danger within the meaning of the Act and therefore the landlord was not liable. There was no evidence that the skylight's perspex cover was in a state of disrepair, that the corrugated perspex did not constitute a suitable cover, or accordingly, that the landlord had been negligent. The tenant's case was unsuccessful.

Notice of hazard

With the rare exception of cases which can be brought within the Defective Premises Act 1972 and obligations in respect of common parts (see above), almost all repairing obligations require (expressly or by implication) that the landlord has knowledge of disrepair within the demised premises before any liability arises. The most usual way of imparting the landlord with this knowledge is for the tenant to give the landlord notice of the defect.

In contrast, latent defects are, by definition, not normally identifiable before they cause harm. The defect may suddenly appear without warning - perhaps because of some manufacturing defect in the materials used, or perhaps due to defective workmanship when the property was built. Neither tenant nor landlord can normally be expected to be aware or give notice of the defect.
So, a tenant injured by the collapse of a ceiling which no-one could have expected to be liable to fall, cannot recover damages from the landlord for breach of repairing obligations(15).

Safety regulations

Rented premises are also governed by the Consumer Protection Act 1987 and product safety regulations made under the Act. How do these affect the landlord with regard to hazards?
The General Product Safety Regulations require that any fitting, appliance or other product supplied with a rented property must be safe. But under the Consumer Protection Act, this does not cover fixtures in a property or 'items attached to land' (16).

The difference becomes clear when we look at some examples.
A table with a glass top that had been manufactured with ordinary glass (rather than safety glass required by modern furniture regulations) might be deemed to be a hazard to the tenants. It is not 'attached to land', and so is caught, on supply, by the safety regulations, On the other hand, the glass panelled door in the case earlier (Alker v Collingwood) is also potentially a hazard (under current building regulations applying to newly-built property), but may legally remain in the property because it is a fixture.
In order to reduce their legal liabilities, an increasing number of landlords now choose to let property unfurnished, and the trend has been accelerated by these regulations.

HHSRS

The law changed once again in 2006 with the introduction of the Housing Health and Safety Rating System (HHSRS). Whilst HHSRS does not impose any immediate liability on the landlord for unsafe items, a local authority can serve an improvement notice on the property. This then gives the landlord 60 days to remove hazardous objects and carry out any necessary improvements to make the property safe. Through this process, all property owners will be forced, over time, to remove hazards and upgrade internal glazing to modern safety standards.

Building regulations

Building regulations apply primarily to new buildings, and significant alterations to existing buildings. They do not require that older buildings are brought up to modern standards unless major alteration works are taking place at the same time.
Equally, building regulations do not normally apply to minor repairs. The law defines the standard of repair as that which restores the structure or premises to the standard of repair applying prior to the disrepair. i.e. their original condition(17). A notable exception relates to glazing repairs where since 2002 building regulations require that any repairs to glazing in critical areas (e.g. doors and low level windows) are carried out with safety glass to current glazing standards.
Best practice, however, suggests that whenever financially viable, the current building regulations should be followed when making repairs.

Swimming pools

We started this article by looking at the potential dangers and liabilities posed to the agent (or landlord) by a swimming pool in the rented property. Examining the Occupiers Liability and Defective Premises Acts, we can see that in the case of a single private dwelling, there is no general duty of care that attaches to the landlord from the presence of the pool.
Whilst the house is occupied, the main duty of care to any visitors to the property will rest with the tenants under the OLA since they are in occupation and control of the premises.

However, some important exceptions can arise. If the pool was shared between several houses or flats, then the landlord could become the person in control of the pool and would be responsible for it - and would need to make a risk assessment of the situation in order to decide appropriate precautions. Alternatively, if the property sat empty, then the liability for the safety of the pool would return to the owner as the 'person in control'.

Similarly, ponds and rivers which lie within a property pose potential hazards to the tenants as occupiers and their visitors. Whilst it might be prudent for a landlord to alert a family with young children to these features, no legal liability normally attaches to the landowner for these natural hazards. There is no requirement on a landlord to erect safety fences around them or affix warning signs. In this area of the law at least, some common sense still prevails. The tenant, as occupier of the property is expected to take appropriate precautions for his own safety, and the safety of his children and his visitors.

Compensation culture

Fortunately, the English courts recognise the dangers of a legal system which attaches legal liability to any mishap, and generally strive to make decisions that are equitable and proportionate. In a recent House of Lords ruling, this principle was restated: "The pursuit of an unrestrained culture of blame and compensation has many evil consequences and one is certainly the interference with the liberty of the citizen...... It is not legal policy to require the protection of the foolhardy or reckless few at the expense or enjoyment of the rest of society." (18)

 

References
1.     See Letting Update Journal (LUJ), July 2004, page 23
2.     Defective Premises Act 1972, section 4(3)
3.     McNerry v LB of Lambeth (1988) 21 HLR 188
4.     Sykes v Harry [2001] EWCA Civ 167
5.     McAuley v Bristol City Council (1991) 23 HLR 586
6.     Alker v Collingwood [2007] EWCA Civ 343, LUJ Oct 2007, page 27
7.     Adams v Rhymney Valley DC (2001) 33 HLR 446, CA
8.     Occupiers Liability Act 1984
9.     Occupiers Liability Act 1957, section 2
10.   Occupiers Liability Act 1957 section 1(3)
11.   Occupiers Liability Act 1957 section 2(2)
12.   Darby v National Trust [2001] PLSCS 24
13.   Sowerby v Charlton [2005] EWCA Civ 1610
14.   Siddorn v Patel (2007) QBD Letting Update July 2007
15.   O'Brien v Robinson [1973] AC 912
16.   Consumer Protection Act 1987, section 11
17.   Proudfoot v Hart (1890) 25 QBD 42
18.   Lord Hobhouse in Tomlinson v Congleton Borough Council [2003] UKHL 4