Statutory Obligations Relating to Property Condition
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.
- 1.1The 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.
- 1.2Most 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.
- 1.3Statutory 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.
- 2.1Statutory 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
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?
"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.
- 2.4An 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.
- 3.1It 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
- 3.2Section 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.
- 3.4Although 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.
- 4.1The 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.
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.
The rest of the guide contains information on:
- Civil Liability for defects
- Duty of Care
- Whether obligations apply where there is a right to enter
- Examples of liability
- Cases where there was no liability
- Need for damage/injury
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