Communal Areas And Landlord Liability
There is a small block of 6 apartments and the freehold is held by a Housing Association. Some of the flats are owned by leaseholders and some rented out by a Housing Association (HA). A tenant of the HA erected a swing in the communal garden with the full agreement of all the other residents and the HA cemented the swing in place so it was as safe as possible. However last year that HA was merged with a bigger HA and that HA has said that the swing now has to be removed and replaced with another that can be taken down at the end of each day. The reasons for doing this seem to be related to the Landlord And Tenanct Act 1985 i.e.the HA are not able to approve the use of play equipment in the communal areas for the following reasons:
- The HA is not able to maintain play equipment
- If the HA allows the play equipment to remain in situ and the play equipment is not maintained by the HA, should the play equipment deteriorate over time, the HA would be liable for any accidents that occur due to its deterioration.
- The HA would not need to be notified of defects to become liable for any accidents which is a risk for the HA.
- The HA is not able to disclaim against potential incidents for personal injury as the play equipment is open to all and it would be difficult to police who uses the equipment including other residents and visitors.
My tenant is a singe mother with a special needs child who gets a lot of enjoyment from using the swing. All of the other landlords/residents are happy to fund any additional costs to minimise any risk to the HA but they are sticking to their guns. I wonder if someone could confirm whether the HA has correctly interpreted the obligations of the 1985 Act as all I can see relate to internal communal areas with nothing said about communal gardens. Also are there any precedents set elsewhere which would help with my discussion with HA, one way or the other?
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