The Landlord's Disrepair Duties

From a landlord's (or agent's) point of view, it is essential to have an understanding of the key repairing obligations both to preserve the landlord's asset and to avoid unnecessary claims and dissatisfaction from tenants.

Even the most modern and well-built houses will deteriorate if left to their own devices.  To keep a house in a habitable, and good condition constant maintenance is needed.  A building is a complex interdependent structure; a fault in one of its components can lead to more extensive damage to other parts of the building.  Something as simple as a blocked gutter can lead to serious damp penetration if rainwater is allowed to run down a section of wall. 

The landlord's key obligations are provided either by explicit terms within the tenancy agreement, or under obligations implied by statute such as the Landlord and Tenant Act 1985.

Caveat Emptor

Historically, tenants have had a bad time of it and their bargaining position was weak.  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.  These were the days of caveat emptor, meaning literally 'let the buyer (or lessee) beware'(1).  Under this principle, the onus is on the person entering into a tenancy agreement to satisfy himself or herself of the condition of the property.  Fortunately for modern tenants, caveat emptor and the legal maxim 'Fraud apart, there is no law against letting a tumble down house' no longer apply.  However, vestiges of caveat emptor still remain; in the absence of any express or implied obligations, neither party is required to repair.  Various statutes now provide tenants with more protection against disrepair and ensure houses are fit for habitation.

Common Law

At common law, there is an exception to the caveat emptor rule for furnished residential premises that they are let as fit for human habitation.  They are unfit for habitation if the defect is so serious that no person could be reasonably expected to live in them; for example, a premises infested with bugs(2), defective drains(3), and an insufficient water supply(4).  As stated, the implied condition only applies to furnished premises, and only then if the premises were unfit at the commencement of the tenancy, even though the defect did not materialise until later(5).

This implied condition for fitness at common law now has its counterpart, although not quite the same, under the statutory definition of fitness for human habitation provided by section 604 of the Housing Act 1985(6).  The implied condition only covers 'fitness for human habitation' which does NOT include structural defects.  Thus in the well-known case of Quick v Ely Taff Borough Council(7), where severe condensation caused appalling living conditions, it was, however, held by the court that there was no disrepair as the source of the condensation problem lay in the original design of the building, not disrepair to the structure.

Landlord and Tenant Act 1985, section 11

Most practitioners will be familiar with the provisions of this Act. These provisions are implied into all tenancies of less than seven years duration entered into after 24 October, 1961 and impose an obligation on landlords to effect basic repairs which is absolute.   Section 11 of the Landlord and Tenant Act 1985 (LTA) cannot be excluded from any residential tenancy without the prior agreement of both the tenant and the court.  Thus, a landlord cannot easily negotiate with the tenant that section 11 will not apply to the tenancy.  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.

Section 11 LTA 1985 states that the landlord must:

  1. keep in repair the structure and exterior of the dwelling, including drains, gutters and external pipes,
  2. 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
  3. 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.  Further, the landlord will not be responsible for keeping in repair or maintaining anything which belongs to the tenant.

There is a further caveat that the landlord will also not be responsible for rebuilding or reinstating the premises if destroyed by fire, tempest, flood or other inevitable accident despite the fact that the common law obligation to pay rent would continue.

Standard of Repair
The standard of repair required will vary and is determined by the age, prospective life, character and location of the premises.  Age is important because a 200-year old house could not be expected to be in the same condition as a new one.  Thus, draughty windows might be considered as in 'reasonable repair' in a Victorian property, but in poor condition if present in a new flat.  Good tenantable repair is defined in terms of 'such repair as, having regard to the age, character, and locality of the house, would make it reasonably fit for the occupation of a reasonably-minded tenant of the class who would be likely to take it'(8).

Character is also an important factor because a palace would demand a different standard of repair from a cottage; and location because a house in a back-street in a depressed area in London would not be expected to be kept to the same standard as a property in Grosvenor Square(9).

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 courts as the damage was as a result of condensation and did not directly result  through any disrepair. 'Exterior', for the purposes of s.11, is the outside or external parts of a dwelling, but does not normally include items such as separate outbuildings, garden fences 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 generally those such as internal plaster, skirting boards, internal doors etc. although these may well be affected by other items of disrepair and, if so, will be caught by the duty to make good. Furthermore, the landlord is clearly not responsible for a breakage by the tenant (e.g. broken window), for that would be the tenant's responsibility as part of his duty to use the premises in a tenant-like manner.  The landlord may, however, be responsible for the repair of damage by other parties where it affects the structure or exterior (see 'Damage by Third Parties' below).

Installations
LTA 1985, section 11 states that the landlord must keep in repair and working order all the installations for the supply of water, gas and electricity, and for sanitation; and also installations for space heating and heating water.  Section 11 will therefore apply to the cisterns, water tanks, radiators, boilers, heating ducts and all gas and water pipework in the property.  It also includes an obligation to keep in good repair the fixed electrical wiring and associated sockets.

Notice
The landlord's obligations under LTA 1985 will not normally arise until he has been given notice of the defect (except where the disrepair occurs in any common parts of a building such as a shared entrance hall or stairway).  Notice, for the purposes of this section does not need to be in any specific form.  It may be written or oral, although it is easier to prove that notice was given if it is in written format, and it may be given to an agent for the landlord.

A tenant might be required to prove they have given notice of disrepair if they decide to pursue a claim.  Usually a tenant would be expected to produce copy letters or if verbal notice was given, copy letters from the landlord agreeing to execute works.

Rights of entry and Inspection
It is an implied term of all Housing Act assured tenancies (and also of Rent Act protected tenancies prior to this) that the tenant will afford the landlord all reasonable facilities for access and the execution of any repairs which the landlord is entitled to carry out (Housing Act 1988, s.16).   When the landlord is under an implied covenant to repair, he or any person authorised by him in writing may at reasonable times of the day and on giving 24 hours notice in writing to the occupier, enter the premises comprised in the lease for the purpose of viewing their condition and state of repair (LTA 1985, s11 (6)).

Reasonable time
Once the landlord has received notice of the disrepair, the repairs must then be done within a reasonable time.
"Reasonable time" will be judged by several factors including the type and extent of the disrepair and the nature of the tenancy.  Naturally, the bigger and more expensive the repair necessary, the longer the time period that could reasonably be expected to carry out the repair.  Note, however, that where the disrepair is in the nature of an emergency (e.g. where the fault is a leaking or broken pipe or a total electrical failure) then "reasonable time" may be very short indeed regardless of any other considerations.  Even where it is something less urgent, such as missing roof tiles, the landlord should use reasonable expedience and a delay of a week or two should be achievable.  Where the disrepair involves structural works, these might often take more time to arrange and co-ordinate and the landlord would be justified in a longer delay.

The nature of the occupancy or tenancy might also be a factor - in Taylor v Kowsley BC, 1985(10), a local authority tenant was awarded £100 for absence of hot water and a central ceiling light for five months.  The Court noted that the tenant was a young man in his 20s and implied that its decision might have been different in a case of a woman with a young family.

In Collins v NI Housing Executive (1987)(11), a housing estate was provided with hot water and heating services through a central system.  Most repairs were attended to within 24 to 48 hours.  Modest damages were awarded against the landlord for a delay of four weeks in attending to a single defective radiator.

In Lloyd v Rees(12), a landlord was informed of defects in a flat which included severe damp penetration which caused damage to the plasterwork.  The court held that two months was a reasonable time to carry out re-plastering work to the affected areas.

Tenant Displacement
The tenant must, by law, allow access to the landlord to carry out repairs that he is obligated to do, although the landlord must give the tenant prior warning of the time that he proposes to enter to undertake the repairs(13). 

While repairs are being undertaken, the tenant retains his right to occupy the property, and it is only possible to require him to vacate temporarily if the repairs cannot be conducted with the tenant present(14).  The fact that the repairs would cost more with the tenant in situ does not entitle the landlord to compel him to vacate while the works are undertaken.  In conducting the repairs, the landlord must keep to a minimum the interference with the comfort and enjoyment of the tenant(15).

The tenant for his part must not interfere with the performance of the repairs and he has no right to be rehoused while the repairs are being undertaken.  The tenant is merely entitled to special damages for the cost of alternative accommodation during any extra time out of the property caused by the landlord's delay in commencing repairs(16).   During the period of repair, the tenant's obligation to pay rent will continue(17).  It is because the law still provides little protection to the tenant in such situations, that explicit terms are often inserted into the tenancy agreement whereby it is agreed that the tenant's obligation to pay rent does not continue whilst the property is rendered uninhabitable by fire or similar risks.

However, if the landlord is in breach of repairing obligations and because of this breach the property falls into such a state that the tenant cannot live at the property, the landlord will be liable for the cost of alternative accommodation and removal expenses (as well as any other damages that the tenant can prove as a result of the unfitness of the property).

Grounds 6 & 9
For various reasons, there are situations where, despite it being possible to carry out repairs with the tenant in situ, a landlord will find it more convenient or economical to take possession of the property to carry out repair or general building works.  Alternatively, a landlord may wish to carry out repairs or other works (e.g. improvement works) over and above those which he is required to perform by law.

For assured (and assured shorthold) tenancies, the Housing Act 1988 provides two grounds(18) which can be invoked so that the landlord can gain possession for this purpose.  Ground 6 is a mandatory ground for possession whereby the landlord can gain possession providing he can prove that the necessary works are substantial (as defined within Ground 6) and cannot possibly be carried out with the tenants in residence.  In this case, at least two months' notice would need to be provided to the tenant and the tenant's reasonable removal expenses would have to be paid.   If the requirements of Ground 6 are met, then the landlord has no responsibility to provide alternative accommodation to the tenant. 
Alternatively, the landlord may use Ground 9 which is a discretionary ground which (unlike Ground 6) requires that the suitable alternative accommodation is made available.  Again, the landlord would be liable for the tenant's reasonable removal expenses.

Damages

Where there is a breach of a repairing covenant, the correct approach in calculating damages is to seek to put the tenant in the position s/he would have been in if the landlords had performed their covenant to repair. There is no one set of rules as to how this should be calculated, although generally costs would be awarded on the basis of (a) the cost of alternative accommodation while the premises were uninhabitable (b) for the cost of redecorating and (c) for discomfort, loss of enjoyment and any ill-health arising as a result of the disrepair.

Defective Premises Act

Landlords should also be aware of section 4 of the Defective Premises Act 1972.  This imposes on a landlord who is under an obligation to its tenant for the maintenance and repair of property, a duty to take reasonable care to ensure that those who might reasonably be expected to be affected by defects in the state of the premises, are reasonably safe from personal injury or from damage to their property.  Thus, the landlord's duties under this statute are extended to include third parties (such as the tenant's visitors). 

The duty is owed if the landlord "knows (whether as the result of being notified by the tenant or otherwise) or if he ought in all the circumstances to have known of the relevant defect".  This is contrasted with the situation under s.11 LTA where the landlord's obligation only begins once the tenant has given notice of a defect.  It is generally agreed that, in practice, section 4 extends the landlords repairing obligations under s11. LTA.

In Clarke v Taff Ely BC, (1983)(19) a tenant's sister visited the tenant's property in order to help them decorate.  As, she stood on a table to wash down the ceiling, a leg of the table went through the floorboards throwing her to the ground.  The house was known to be situated in a damp area, and the local authority was aware of defects in the construction such as there being no ventilation under the floorboards.  The landlord was held to be liable since it was foreseeable that the floor was likely to give way without notice.

Pre-tenancy inspections
Although it has yet to be firmly established as a principle in law, there is a strong case for arguing that landlords are now under a general duty to conduct a pre-tenancy inspection.  Under recent safety legislation, this will include inspections to ensure that the property is safe(20).  Landlords and agents (especially those dealing with property on a daily basis) might reasonably be expected to identify potential hazards.

In the recent case of Morley v Knowsley BC, 1998(21), a tenant moved into a council home on 21 November 1994.  Just over a month later, she fell down the stairs because a piece of wood broke off the leading edge of one of the steps.  She brought an action for personal injury damages, claiming £2,500 damages under the Defective Premises Act 1972.  The claim was allowed.  The court held that given the age of the house, and the fact that the accident happened so soon after the tenant had moved in, the landlord 'ought in all the circumstances to have known of the relevant defect' and have taken the precaution of carrying out a pre-tenancy inspection.

Limits
A recent case shows that the court is prepared to put sensible limits on the landlord's liabilities arising from the Defective Premises Act.  In Boldack (minor) v East Lindsay DC, 1998(22), a tenant had been in her new home for only four days when her five-year old child was injured in the back yard by a two-foot-square paving slab, which had been left resting against the rear wall of the house. The Court of Appeal rejected the plaintiff's claim for damages of £5,000 (for personal injury) since there was no want of 'maintenance or repair' which could trigger the duty under section 4, and even if s.4 did apply, the duty under it would only be triggered if the council knew or ought to have known of the presence of the paving slab, and that could not be proved on the evidence.

Environmental Protection Act 1990

Occasionally conditions in housing are so defective as to be prejudicial to health or a nuisance.  Prejudicial to health is defined as 'injurious or likely to cause injury to health' and a landlord can be required to carry out remedial works under the Environmental Protection Act (EPA) 1990 to abate the nuisance.

These powers are occasionally used against landlord, especially in situations such as severe damp and condensation, where a building is technically not in disrepair, but the conditions can nevertheless be deemed to be prejudicial to health.  In one recent case heard in 1998, a tenant alleged that there was severe damp and mould in the property caused by condensation.  The landlord argued that the tenant should simply open the windows from time to time to create additional ventilation.

The court ruled that the condensation was caused by lack of proper ventilation and insulation and ordered the landlord to fit improved ventilation (humidity-driven extractor fans) in the property.

Fortunately for landlords, the courts have again drawn boundaries on how far these powers can be extended.  The recent case of Regina v Bristol CC ex p Everett in 1998  was significant in that the tenant tried to prove that a very steep staircase in an old house was a potential danger to her health under EPA since she might fall and injure herself.  On appeal, the court refused the application, holding that EPA 1990 was primarily intended to apply to cases where there was an injury to health caused by disease, vermin etc. not to situations where there was a risk of physical injury caused by property defects.

Damage by third parties

Unfortunately, criminal damage and burglary is increasingly common in the modern age.  Unlawful entry on to a property can made more easily when the property is in disrepair and landlords can represent potential targets for tenants to pin their losses (especially since it is often difficult to obtain insurance cover in high risk locations).

Although landlords are not generally liable for the actions of third parties, they will inevitably be obliged to repair the damage where such damage affects the structure and exterior of the property.  Thus the landlord is obliged to repair any exterior doors, windows, glazing, or related fixtures damaged, for example, during a burglary.

Consequences of disrepair
If neglect or delay on the part of the landlord in carrying out repairs to relevant defects causes further loss to the tenant, then the landlord can also be held liable for such losses.

In  Morris v Liverpool City Council [1988](23), the tenant's door was broken down by the fire brigade while dealing with a fire in another part of the block.  The landlord was under a statutory obligation to repair, and boarded up the doorway with plywood.  The Court in this instance disallowed the tenant's claim for loss caused by the burglary, but held that if the landlord had failed to replace the door within a reasonable time, then losses caused by burglary would have been foreseeable, and the landlord would be liable.  One week was held not to be an unreasonable time to repair the door.

A similar issue has been considered more recently in Marshall v Rubypoint Ltd (1997)(24).  Here the tenant occupied a flat within a block of flats.  The landlords were under an express obligation to repair the common parts including the front door.  In April 1993, the lock on that door was loose, the door was insecure and it remained so for five months.  In September, the tenant's flat was burgled three times and personal property stolen.  The landlords admitted breach of the repairing covenant.  The Court held that the risk of burglary was foreseeable as a result of the front door being insecure, and that although the landlords were not responsible for the acts of the burglar, they were responsible for the breach and thus partially responsible for the tenant's resulting losses.

The landlord will, however, not generally be responsible for consequential loss resulting from third party damage to parts of the property which are not covered by explicit or implied repairing obligations.  In King v Liverpool CC, 1986(25) the court held that the landlord was not under a duty of care when vandals broke into an empty flat (also owned by the same landlord) above and caused flooding and damage to the tenant's effects.

Contract

Landlords should be wary of the effects of making enhancements to the repairing covenants in the tenancy agreement.  Most residential landlords adopt standard wording which provides a contractual obligation to keep in repair the structure and exterior of the building (normally according to the implied statutory obligations under s.11 LTA 1985 described above). 

Enthusiastically, the local authority landlord in Arnold v Greenwich LBC(26) agreed to 'maintain the dwelling in good condition and repair'.  The Court decided that the adopted wording gave wide interpretation and scope to the landlord's obligations.  The tenant complained not of disrepair but of damp, smells from refuse bin storage area beneath his flat (pungent during summer months) and noise nuisance from the use of the communal rubbish chute.  Because of the unusual wording of the tenancy agreement, the Court decided that the landlord was under a duty to remedy the above defects and the tenant was awarded damages for discomfort and inconvenience.

Disrepair claims - new rules

As a result of recent law reforms, it has been announced that with effect from 26 April 1999, the small claims threshold for civil disrepair claims is to be reduced to £1,000.  This means that the small claims' rules for arbitration and representation will now only apply for smaller disrepair claims.  Unless the parties agree to have the case heard in the small claims court, tenants will be entitled to employ legal representation on larger claims, and if the action is successful, claim their legal fees in addition to any damages being claimed. 

This measure was introduced in order to give legal assistance to parties involved in a disrepair dispute since it was judged that the inherent complexity of the law relating to disrepair could otherwise prevent access to proper legal advice and representation. In practice, the move is most likely to benefit legally-aided tenants whose legal advice is heavily subsidised, and who otherwise would be denied full legal assistance in bringing their case to court.

Owners and managers of houses in multiple occupation (HMOs) have additional duties with regard to safety and disrepair.  These duties are defined within both the Housing Act 1985 and the Housing (Management of Houses in Multiple Occupation) Regulations 1990.  The regulations are primarily intended to ensure that HMOs are provided with adequate sanitary arrangements, fire precautions and means of escape in case of fire.  The duties apply to both managers and residents of HMOs.

There have been many difficulties with enforcing the existing legislation.  The new proposals for licensing of HMOs may additionally alter the duties of HMO landlords with regard to the management of repairs and safety issues.

References
1.  Robbins v Jones (1863) 15 CB 221.
2.  Smith & Marrable (1843) 11 M&W 5
3.  Wilson v Finch Hatton (1877) 2 Ex D 336.
4.  Chester v Powell (1885) 53 LT 722
5.  Harrison v Mallt (1886) 3 TLR 58
6.  Section 604(1) of the Housing Act 1985, as amended by Sch 9, para 83 of the Local Government & Housing Act, 1989.
7.  Quick v Ely Taff BC (1986) CA
8.  Proudfoot v Hart (1890) 25 QBD 42
9.  Proudfoot v Hart (1890) 25 QBD 42
10.  Taylor v Kowsley BC (1985) 17 HLR 376, CA
11.  Collins v Northern Ireland Housing Executive, (1987) CA (NI)
12.  Lloyd v Rees [1996] CLY 3725 Pontypridd County Court
13.  Granada Theatres Ltd v Freehold Investment [1959]Ch 592
14.   McGreal v Wake (1983) 13 HLR 107
15.  Guppy's (Bridport) v Brookling (1984) 14 HLR 1.
16.  Calabar Properties Ltd. v Stitcher [1984] 1 WLR 287 .
17.  Saner v Bilton, (1877) 
18.  Housing Act 1988, Schedule 2
19.  Clarke v Taff Ely BC, (1983) 10 HLR 44, QBD
20.  Gas, Electrical, Furniture and General Product Safety Regulations
21.  Morley v Knowsley BC, 1998, Legal Action 22, CA
22.  Boldack (minor) v East Lindsay DC, 1998, Legal Action 22, CA
23.  Morris v Liverpool City Council [1988] 1 EGLR 47
24.  Marshall v Rubypoint Ltd (1997) 29 HLR 850.
25. King v Liverpool CC, 1986, 278 EG
26.  Arnold v Greenwich LBC [1998] 1 CL 383, QBD.

Please note: This article was originally published in the Letting Update Journal in April 1999. All information was correct at time of publishing.