Statutory Obligations Of Landlords As To Property Condition

Key Points

There are three key statutory provisions which can affect the landlord’s responsibility for the physical state of the premises or what happens on them.  Firstly, if there is a statutory nuisance or the premises are prejudicial to health, the local authority can serve notice or alternatively an application can be made to the Magistrates Court, e.g. by the tenant, for an order to abate the nuisance.  Where the landlord retains control of any part of the premises (e.g. communal areas) the landlord owes a common duty of care to visitors and may be liable if they are injured or die as a result of the landlord’s negligence.  The Defective Premises Act imposes obligations where a dwelling is provided but more importantly there is civil liability to pay damages on the part of a landlord where a tenant or resident is injured, or dies, as a result of a defect which the landlord is responsible for repairing (or simply has the right to come in and repair).  This extends to paying compensation for personal belongings which are destroyed or damaged as a result.  This liability arises if the landlord fails to carry out a repair which he was obliged to do or had the right to do where he knew of the defect in question or ought to have known about it.  Thus, there can be a liability in negligence even though the landlord did not know of this defect but should have done. 

General

1.1         The legislation with which we are concerned here are those which seek to ensure that the landlord lets or keeps the premises in a particular physical condition.  This generally relates to the use to which the property is put.  The rules have been enacted to meet a variety of public concerns, generally aspects of public health, safety and welfare.

1.2        Most of these statutes apply equally to property which is owner-occupied and to property which is let.  They are concerned not with the contract between landlord and tenant, but directly with the property.

1.3        Statutory regulation has probably been most extensive in relation to residential
property.  The objectives of the legislation are to ensure that dwellings are fit for human habitation, to eliminate unsanitary conditions and to engender the improvement of individual properties and whole neighbourhoods.    The provisions overlap because often more than one of them may be relevant in a particular case.

Statutory Nuisance etc.

Abatement

2.1.       Statutory provisions which can be used to enforce standards of residential
accommodation are found in the public health legislation.  If any premises are "in such a state as to be prejudicial to health or a nuisance", (Environmental Protection Act 1990, s 79(1)(a) s 80(1))  the local authority for the area may serve an abatement notice, requiring the abatement of the nuisance and the execution of any necessary work.   In the case of a structural defect, the notice is served on the owner of the premises. Failure to comply with the notice is an offence.  A danger of personal injury is not enough.  Recent cases have held that a steep staircase and a w.c. next to the kitchen did not amount to a statutory nuisance.

Application to Magistrates Court

2.2.       A separate procedure allows a person who is aggrieved by a statutory nuisance to apply to the magistrates' court for an order that it be abated, prohibiting its recurrence and for the person responsible to do any necessary work.   As this action can be initiated by anyone who is aggrieved, it is available against a housing association, or a local authority landlord.  A person must give at least 21 days written notice before applying to the Court. The court can impose a fine on the person responsible for the nuisance, and breach of the order is an offence. A landlord who is convicted under this provision can be required to pay the tenant compensation for personal injury, loss or damage. (Section 82 1990 Act) but only from the date that notice of intention to apply is given.

"Nuisance" means a common law nuisance and cannot therefore be to the prejudice of the occupiers of the  property in question.  It must come from a neighbouring property.

What is Prejudicial to Health?

2.3.       "Prejudicial to health" is itself defined to mean "injurious, or likely to cause injury to, health".  This can extend to cover damp caused by condensation.

Health is not, however, to be equated with personal comfort, and there is no direct link with the statutory standard of fitness for human habitation.  However, when action is taken by a person aggrieved and the court is of the opinion that the nuisance renders the premises unfit for human habitation, it may prohibit their use for that purpose until they have been rendered fit.  The test to be applied in ordering the abatement of a nuisance must take into account the circumstances of the case.  The shorter the period before probable demolition, the more severe must be the injury or likely  the injury to health or, as the case may be, the nuisance, to justify action by way of abatement.

Emergency Procedure

2.4        An emergency procedure is available where it appears to a local authority that premises are in a state which is prejudicial to health or a nuisance and that the procedure relating to nuisances outlined above would result in unreasonable delay in remedying the defects. The local authority can serve notice, on the owner or person responsible, that it intends to remedy the defective state of the premises, and after nine days it may do the work and recover the costs from the recipient of the notice.  (Building Act 1984, s 76(1) (2).  The costs may not be recoverable if,  in proceedings to recover them, the court concludes that the authority was not justified in using this procedure).  The recipient of the notice has seven days within which to serve a counternotice that he will remedy the defects, in which case the local authority may take no action unless the work is not started within a reasonable time or reasonable progress is not made towards completion of it.

Occupiers Liability

Retained Premises

3.1        It is common for the landlord to retain in his “occupation” part of a multi let property.   For example, the courtyard, entrance steps, staircases, boiler-house, lifts and roof of a block of flats may be retained in the landlord’s occupation.  The Occupier’s Liability Act 1957 imposes a duty of care.

Duty of Care

3.2        Section 2 of the Act provides that in such circumstances the landlord owes a common duty of care to all visitors and that this is a duty “to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises.”   The statute prohibits any attempt by a landlord to exclude or reduce his obligations to persons, not party to the contract, who are visitors, under the terms of the tenancy agreement.   Indeed, attempts to exclude or transfer liability in this way probably now fall within the ambit of the Unfair Contract Terms Act 1977.

3.3        Although the 1957 Act imposes a liability on the landlord for injury caused to, say, the tenant’s spouse, by defects in the part of a building “occupied” by the landlord, it does not provide a way by which the landlord may be forced to repair such defects in the common parts, in advance of the accident.

Defective Premises

General

4.1        The Defective Premises Act 1972 places liabilities on landlords (including landlords who are builders/developers) for defective premises.  These are not dependent on the landlord’s knowledge as the landlord can be liable in negligence i.e.  if he ought to have known of a defect.

Undertaking Work

4.2        Section 1 of the Act imposes a duty on those who undertake work for, or in connection with, the provision of a dwelling to:

(a) do the work in a professional or workmanlike manner; and

(b) use proper materials; and

(c) ensure that the dwelling is fit for human habitation when completed.

The duty is owed by builders as well as all others doing work in connection with the provision of the dwelling, for example architects, surveyors specialist sub-contractors, etc.   It is also owed by, for example, local authorities and housing associations who engage a builder to do the work.   The duty is owed to the person for whom the  dwelling was provided and to any person acquiring a subsequent legal or equitable interest.   Section 1 is available in relation to property on which work commenced after 1 January 1974.   It extents to conversions and alterations but not repairs,

A tenant will accordingly have a statutory civil remedy against a landlord for defects in a property badly built wholly or partly by the landlord.

Builders may also be subject to enforceable civil liability for breach of building regulations:  Health and Safety at work etc 1974 S71.

Civil Liability for defects

4.3        The most important provision of the 1972 Act is contained in S4.   This imposes on a landlord civil liability for damage caused by defects for which he is liable, but has failed to repair.   The  section, which extends to tenants, licensees, members of their households and visitors, gives a civil remedy for personal injury or damage to their property.  There are limits as it only covers items falling within the scope of the landlord’s repairing obligation or when the landlord has the right to do the work.  There is no general guarantee of fitness.   However, the landlord is liable where he knows of the defect or when he is negligent, even though he may not be aware of the defect in question.

Duty of Care

4.4        Section 4(1) provides that where premises are let on a tenancy (or a right of occupation is given by statute or contract e.g. a licence) under which the landlord has an obligation (or a right) to repair or maintain, the landlord:

owes to all persons who might reasonably be expected to be affected by defects in the state of the premises a duty to take such care as is reasonable in all the circumstances to see that they are reasonably safe from personal injury or from damage to their property caused by a relevant defect”.   For the definition of “relevant defect” see below.

The repairing or maintaining obligation concerned may be an express contractual term or may be implied into the contract by common law or statute (e.g. Under Section 11 of the Landlord & Tenant Act 1985) S.4(5). 

Simply having a right to enter to do the work suffices to give rise to potential liability.

Applies where there is a right to enter

4.5        Section 4(4) extends “obligation” to mean that where a landlord has a right to enter in order to carry out any description of maintenance or repair, “he shall be treated for the purposes of [S4(1)-(3)] …. as if he were under an obligation …”     The section provides assistance to tenants and others who do not have the benefit of express or implied contractual repairing covenants, but in respect of whom the landlord has expressly reserved the right to enter and do certain repairs (possibly even in default)

In the case of assured tenancies if the landlord is entitled to do a particular repair, the landlord will owe a duty of care in respect of such repair, since the statute gives the landlord the right to enter and do those repairs.   In the case of any other form of tenancy, if the landlord has the express or implied right to enter and carry out repairs, then S4 applies to any defects in the property which might be corrected as a matter of repair (as opposed to improvements)

No need for knowledge of the defect

4.6        Usually with a contractual or statutory implied duty liability does not arise until the landlord has notice of the need for repair.   Section 4(2) enables tenants to avoid this rule.   It is clear from the terms of S4(1) that the duty arises as soon as any property is let provided that the landlord is under an obligation (or has a right) to repair to maintain.   Section 4(2) goes on to provide that the duty is owed “if the landlord knows ….  or if he ought in all the circumstances to have known of the relevant defect.”   In other words if the landlord is negligent because he ought to have known of the defect then he is potentially liable.   Section 4(4) provides that liability for relevant defects arises “as from the time when he first is, or by notice of otherwise can put himself in a position to exercise the right” to enter and repair (e.g. at the end of any notice served)

Example of liability

4.7        This provision helps the tenant has not notified the landlord of a defect which subsequently causes injury.  Examples of the application of this duty include cases where –

(a)        an injury occurred when the floor of rented council accommodation collapsed.   The tenant has not notified the council landlord of any defect.    It was conceded that S4(3) and (4) applied in that the council had an obligation to carry out repairs and was entitled to enter and inspect.   The council was held liable as it ought reasonably to have known that houses of the same age and  type were susceptible to dampness and rotting floorboards.   The defects could easily have been discovered by simple inspection.

(b)        the tenant was injured when the external patio of his council house gave way.   The council landlord had not constructed the patio.   The tenant had not reported any defect.   However, the council had retained an express power in the tenancy agreement to enter and inspect and carry out repairs.   The Section operated to impute the landlord council with knowledge of the defects.   They were liable to take reasonable care to avoid injury to the tenant.    The duty of care was held to have been breached.   The Section applies equally where powers of entry to repair are implied, so it must apply to almost all periodic tenancies since the court will usually imply a power to enter and inspect and carry out repairs in the absence of express provision.

(c)        the tenant falls and is injured by unstable rear steps and the Council landlord had a right to enter for any purpose as required by the Council.

(d)        Where a visitor was injured when the door knocker came away as she was pulling the front door closed.   The council landlord was deemed to have known of the use of door knockers in this way and was held liable for failing to carry out systematic inspection and maintenance.

Cases where there was no liability

4.8        Examples of where section 4 liability may not arise–

(a) there is condensation relating to damp where the property is not in disrepair.

(b) In certain instances, where young children have been injured in tenanted properties.   In one case the local authority let a flat containing pipes which protruded into the rooms and carried hot water for the estate district heating system.   The tenant’s child was seriously burned on falling against the pipes.  Although a duty of care was owed by the landlord, negligence was not established on the particular facts of the case.   Similarly, in another case the tenant’s child fell through a window as a result of a defective catch.   The Court of Appeal was prepared to hold that the duty of care was owed, but held that there had been no breach of the duty of care on the particular facts of the case.

(c) The property had  a front door with a ribbed glass panel.  The tenant was going into the property and pushed on the glass.  The glass broke cutting the tenant.  The glass was not safety glass.  The use of ordinary glass in a door had been abolished since 1963 although this house was built in accordance with the then current building regulations.  There were rights of entry to repair.  There was no disrepair/failure to maintain.  The current landlord was not obliged to repair the property so it was not liable.

Defects

4.9   The person suffering damage  (whether the tenant or another) may rely upon the duty of care only if the damage arises by reason of a “relevant defect”.  Section 4(3) defines this as “a defect in the state of the premises” arising from or continuing because of:

(a) an act or omission of the landlord in failing to carry out the obligation (or right) to repair or maintain; or

(b) Such an act or omission for which the landlord would have been liable had notice been given.

The relevant defect must exist at or after the “material date”.   In relation to pre-1974 tenancies, this is defined as being 1 January 1974.   For all other tenancies the material date is the earliest of the following:

(a) the date the tenancy commenced;

(b) the date the tenancy agreement was entered into; or

(c) the date the tenant went into occupation under the tenancy.

Remedying a defect in design is not a relevant defect for these purposes.

The defect complained of must be of a type covered by the obligation to repair or maintain.  

No contracting out

4.10      The duty owed by S4 cannot be excluded or restricted by the landlord (S6(3)).

Licences

4.11      An example of when S4 would apply is when the owner A grants B a contractual right to occupy an unfurnished room for one year which contains no repairing obligation on the owners parts.   One clause of the licence does say that on “giving 24 hours” notice, the landlord may enter the premises and carry out structural repair, or improvement therein”.   If the floorboards are defective, and the owner ought to know of this, A will owe a duty of care to B and be liable to him for any injury B suffers, at any time 24 hours after the agreement is entered into.

Without the benefit of the 1972 Act, a licensee injured in the circumstances of this illustration would have no recourse arising from any injury sustained.  Equally if instead there was a tenancy Section 4 would apply in such a case.

Need for damage/injury

4.12      The general rule is that these statutory obligations upon a landlord to “take care” cannot be enforced until there has been some damage or injury caused to the tenant or the tenant’s possessions.   Once damage has been suffered, remedies are available.