REPAIRS

Key Points

In the case of residential lettings the landlord is under various obligations to repair the structure and exterior of the premises, as well as various installations in the premises. These obligations apply to weekly and monthly tenancies as well as fixed term tenancies not exceeding 7 years in length. Normally, the landlord will only be liable once he knows of the defect, at least in general terms. This can result either from the landlord being told of the defect by the tenant (written notification is not essential) or because the landlord learns of the defect in some other way. A landlord who is in breach of this obligation is liable to pay the tenant damages and specific orders can be made by the Court requiring the landlord to carry out repairs. In the case of furnished accommodation there is an implied obligation that the premises would be fit for human habitation at the outset of the tenancy. The landlord may also be liable in the event of defects in the common parts or parts of the building where he retains control (e.g. the roof in the case of a block of flats). The tenancy agreement itself may contain provision under which the landlord contracts to carry out repairs. The statutorily implied obligation will apply in any event but an express provision may impose a greater liability on the landlord. The landlord has rights of entry to carry out repairs.

A. General

Repairs and the safety (and health) of tenants are closely linked.

1.1: The duties of the Landlord and the Tenant respectively concerning the state and condition of premises are imposed in three ways: those implied at common law, express contractual obligations and those implied by statute. All may apply to a particular case, although an express agreement will exclude what the common law otherwise implies. A statutory provision may override any agreement between the parties.

1.2: In addition to the duties imposed by the tenancy relating to repairs landlords and tenants are also affected by the Defective Premises Act 1972 imposing liability relating to the state and condition of the property

B. Common Law

Landlord's obligations

2.1: Generally, a landlord who has no express duty to repair only has such duty (if any) as statute imposes, but this is subject to limited exceptions. There are two relevant common law duties imposed on landlords in certain cases:

  1. an undertaking as to fitness for human habitation,
  2. obligations relating to other property not let under the tenancy but under the Landlord's control.

There may also be liability at common law in negligence in certain circumstances.

Fitness for Human Habitation

2.2: There are two cases in which, at common law, a landlord undertakes an obligation about the fitness for human habitation of residential property which he lets:

  1. There is an implied condition that furnished premises are let in a state reasonably fit for human habitation. This does not impose a duty on the landlord to keep them in that condition, and does not affect unfurnished lettings. If it is unfit at the outset of the tenancy the tenant can repudiate the tenancy and walk away. It will include things such as drainage defects and the presence of vermin.
  2. When a landlord agrees to let a house which is in the course of erection, there is an implied undertaking that, at the date of completion, the house should be in a fit state for human habitation. This does not apply where the tenancy is entered into after the house is finished – see further below

Landlord retains other property

2.3.1: Such obligations only affect property which remains under the Landlord's control. There are two distinct types of case. The first group relates to work required to remedy defects which have a physical effect on the demised property or the occupation of it. The second group concerns work on property on or over which the tenant exercises rights e.g. a right of way.

2.3.2: The general principle established by the case law arises where the Landlord retains in his possession and control something such as a roof or staircase. If its proper repair is necessary for the protection of the let premises or their safe enjoyment of the tenant, the Landlord is under an obligation to take reasonable care relating to the premises retained in his occupation. He must see that they are not in such a condition as to cause damage to the tenant or to the premises which are let. The liability is in negligence and it extends not only to the tenant but anyone lawfully on the premises. It is not necessary that the Landlord should have notice of disrepair.

2.3.3: It is not always possible to be precise about the scope of this implied obligation. The rule as to strict liability for damage in (Rylands -v- Fletcher) does not apply to escape of water from premises controlled by the Landlord if the water is on the premises for the benefit of all parties. In the absence of negligence a tenant of part of the premises is not liable for an overflow of water.

2.3.4: In relation to other property retained by the landlord over which the tenant enjoys rights, the position is clearer. Adequate repair of the other property may be fundamental to the use and enjoyment of the demised premises. This has been applied to means of access For example where the tenants can only use their flats by using the staircase. The Courts consider that as it is obvious that the only way in which it could be enjoyed meant that the parties to the tenancy must have intended by necessary implication was that the landlord should maintain the staircase. A Landlord who lets rooms to a tenant and provides a common staircase which the tenant have to use are under an implied contractual obligation to keep the access in a reasonably safe condition. Otherwise the tenant could not have enjoyed the use of the rooms which he has contracted to take. A Landlord may also be held liable to repair a path which was an essential means of access to a house let on a weekly tenancy.

2.3.5: This approach was developed by the House of Lords. The landlords of a tower block were held to have implied obligations to take reasonable care to maintain in a state of reasonable repair and usability the stairs, lifts and lighting on the stairs.

Repair on Notice

2.4: A landlord who is responsible for repairing property let is not normally liable until he has had notice of the need to do the work.

Liability for Negligence

2.5: A landlord who has built the premises which he then lets also has a liability which is sometimes included as an example of his implied obligation to his tenant. This only extends to landlords who are builders This is a duty to ensure that the premises are reasonably safe when let – this aspect is dealt with further elsewhere.

C Contractual Obligation

Obligation to Repair

3.1: The tenancy agreement may impose express obligations on the Landlord relating to repairs contractually in deciding what responsibilities the parties to a tenancy agreement are to undertake in relation to the state and condition of the property, they are free to select any obligation and any standard that they wish. Most commonly, however, the duty is an obligation "to repair".

3.2: Where the agreement provided that the property is to be kept in "good condition" the obligation is wider e.g. it may require a condensation problem to be cured.

D Statutory Repairing Obligation

Short Residential Tenancies

4.1: Since 25 October 1961, a landlord who lets a dwelling house for less than seven years (including a periodic tenancy such as a weekly, fortnightly or monthly tenancy) has certain implied repairing obligations. (Landlord and Tenant Act 1985, ss 11, 13). Rules apply for deciding the length of the term for this purpose. Any part of the term falling before the grant of the tenancy is disregarded, a lease containing a landlord's option to determine within 7 years is treated as a term for less than seven years and a lease with a tenant's option to renew is treated (unless it also contains a landlord's option within the last category) as a lease for seven years or more if that would be the length of the term as extended by the exercise of the option.

4.2: Where the premises were let on or after 15 January 1989 and form part only of a building, the landlord's obligations to repair the premises extend to any part of the building in which he has an estate or interest. His obligations relating to installations extend to those outside but serving the demised premises and either forming part of the building in which he has an estate or interest or which are owned by him or under his control.

4.3: No obligation is implied into leases granted on or after 3 October 1980 in favour of certain public sector and similar bodies. They are (i) certain specified educational institutions and other bodies (ii) a registered housing association (iii) local or other authorities (iv) the Crown (except the Crown Estate Commissioners) and (v) Government Departments

4.4: The extent of the landlord's duty is:

  1. To keep in repair the structure and exterior of the dwelling-house (including drains, gutters and external pipes); and
  2. To keep in repair and proper working order the installations in the dwelling-house for the supply of water, gas and 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. To keep in repair and proper working order the installations in the dwelling house for space heating and heating water.

The standard of repair is to be determined having regard to the age, character, and prospective life of the dwelling house, and its locality. The duty does not include work which falls within the tenant's obligation to use the premises in a tenant-like manner, rebuilding or reinstatement after destruction or damage by fire, tempest, flood or other inevitable accident, nor maintaining anything the tenant is entitled to remove from the property. e.g. tenant's fixtures. The landlord has a reasonable time to effect repairs once he has notice of them.

4.5: A dwellinghouse is a building or part of a building which is let wholly or mainly as a private residence.

4.6: The expressions used in Section 11 and its effect have been considered in a number of cases.

"Structure" for the purposes of the implied repairing obligation consists of those elements of the overall dwelling house which gave it its appearance, stability and shape. However, "structure" does not extend to the many and various ways in which the dwelling house would be fitted out, equipped, decorated and generally made habitable. It has been held that the following do not ordinarily form part of the structure of the dwelling-house, namely (i) separate garage and separate gates; (ii) internal door furniture. The external windows and doors (including sashes, cords and frames) do ordinarily form part of the exterior of the dwelling house.

A footpath is not part of the exterior.

Internal plaster was part of the structure.

"Structure" will include the main walls.

4.7: The tenant must allow the landlord or his authorised agent to enter the premises to view the state and condition of the premises. 24 hours notice in writing must be given to the occupier. The right can only be exercised at reasonable times.

4.8: The Landlord is only liable if he has notice of the default or otherwise knows of it it is sufficient if he has information about a defect which puts a reasonable man on inquiry.

4.9: A landlord cannot contract out of the obligation.

4.10: A tenant may bring an action for damages for breach of a landlord's obligation to repair. A tenant may also sue for specific performance of a landlord's covenant to repair in certain circumstances to enforce compliance.

E Entry to repair

Right of entry to view and repair

5.1: The landlord by the granting of the tenancy deprives himself of the right to possession of the premises during its currency, and if he enters without the permission of the tenant, or without reserving to himself the right to do so, he is liable to be treated as a trespasser. Hence the landlord may enter to effect repairs if there is an express reservation of this right or a reservation implied on account of any obligation to repair, or a right given by statute but not otherwise.

Where the landlord has an obligation to repair a licence by the tenant is implied for him to enter for a reasonable time to do the repairs, but he must give the tenant sufficient notice of his intention to enter and general information as to the nature and extend of the work he proposes to do. In general, a right to enter and view the state of repair is expressly reserved by the tenancy.

The fact that the landlord has a right of entry to view the premises does not free the lessee from the obligation to give notice to the landlord of want of repair before he can hold the landlord liable for breach of covenant to repair.

Right of entry

5.2: Rights of entry for repairs are also implied by statute: into assured tenancies. A landlord of residential accommodation let on a short lease who has an implied repairing obligation has a statutory right to enter the premises to view their condition and state of repair - see above. In the case of other periodic tenancies the Court will readily imply a right of entry.

It should be noted that in the case of improvements (as opposed to repairs) there is no statutory implied right of access to do work. If need be, provision should be included in the tenancy agreement allowing access to carry out repairs either to the premises which are let themselves or to adjoining property. Without such a right being included in the tenancy agreement, the tenant will be able to prevent improvements being carried out and this could well include improvements to adjoining premises.

Housing Health and Safety Rating System

5.4: Under the Housing Health and Safety Rating System damp, mould growth, structural collapse etc are hazards. There are various other hazards which could be linked to disrepair depending on the circumstances. If this hazard exists at the property the local authority can carry out a Housing Health and Safety Rating System assessment. If the risk is sufficiently serious as a result of this hazard that it is classified as a Category 1 hazard then the local authority must take enforcement action against the landlord. If it is a less serious Category 2 hazard they have a discretion to do so. For more information about the Housing Health and Safety Rating System click here.Works may therefore be required as a result which could lead to the property being upgraded/improved to deal with a particular hazard.

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