Saturday 30 June 2012


Landlords' Repairing Obligations

(principally under section 11, Landlord and Tenant Act 1985)

Scope:

This Factsheet describes the landlord's main responsibilities for repairs; principally those which are implied into all short leases for residential property by section 11 of the Landlord and Tenant Act 1985.
A short lease or tenancy means a tenancy agreed for less than seven years. Short leases also include periodic tenancies where the tenant has not got a fixed term agreement and occupies the property e.g. from week to week or month to month.

Key Provisions:

The Landlord and Tenant Act 1985 (LTA) states that where the landlord has granted a lease of less than seven years, or a periodic tenancy, the landlord will  normally be responsible:
(a) to keep in repair the structure and exterior of the dwelling, including drains, gutters and external pipes,
(b) to 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
(c) to keep in repair and proper working order the installation in the dwelling for space heating and heating water.(Section 11, LTA 1985)
These provisions apply to leases entered into on or after 30 October 1985:

Keep in Repair:

'Keep in repair' means that the landlord must keep up the standard of repair from the start of the tenancy.  The landlord must also ensure that the premises are put into repair even if they were not in good repair at the start of the tenancy.  'Repair' does not include any duty to effect improvements.  If there is a defect in construction this will not be actionable under s11 as the property will not be in disrepair.  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.
If the tenant is in breach of 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.  The landlord will also not be responsible for rebuilding or reinstating the premises if destroyed by fire, tempest, flood or other inevitable accident, or be responsible for keeping in repair or maintaining anything which belongs to the tenant.

Installations:

LTA, 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 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.

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.
'Exterior', for the purposes of s.11, is the outside or external parts of a dwelling, but does not include items such as outside paving, garden walls 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, 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.

Notice:

The landlord's obligations under section 11 will not arise until he has been given notice of the defect.  Once the tenant has given the landlord notice of the disrepair the tenant must allow the landlord a reasonable period (see below) to carry out the required repairs.  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.
This requirement for notice does not extend to common parts, or facilities which are mentioned in section 11 but which are outside the premises, for example a faulty step in an entrance hall of a block of flats.
A tenant will have to prove they have given notice of disrepair if they decide to pursue a claim.  Usually copy letters or, if verbal notice was given, copy letters from the landlord agreeing to execute works.  Notice can also be shown if a surveyor or other agent of the landlord has been employed to inspect the premises following verbal notification of disrepair.

Rights of Entry:

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.

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 the type and extent of the disrepair.  The bigger and more expensive the repair necessary the longer the time period would probably be.  Note, however, that where the repair necessarily is in the nature of an emergency (e.g. where the fault is a burst or broken water 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 normally be acceptable.  Where the disrepair involves major structural works, these take time to arrange and co-ordinate and the landlord would be justified in taking longer.

Exclusions etc:

The landlord is not required to keep in repair or maintain such of the tenants own belongings as he is entitled to remove from the property, or to do works for which the tenant is liable under the duty to use the premises in a tenant-like manner.  Also, a landlord is not liable to rebuild, or re-instate the premises in the case of destruction or damage by fire, or by tempest, flood or other inevitable accident.
The repairing obligations under Landlord and Tenant Act 1985 do not apply to:
- a lease of a dwelling house which is a tenancy of an agricultural holding
- a lease granted to specific types of bodies including a local authority, a new town corporation, an urban development corporation, housing associations, or a housing action trust
- a lease granted to specified educational institution, or a government department

Tenant's Remedies:

The tenant can recover financial compensation for losses which result from the landlord's failure to repair provided, of course, that these losses are reasonably foreseeable, although not for any losses incurred prior to the landlord having knowledge of the disrepair. Also, if the tenant refuses to give the landlord access to the premises to carry out the work then no damages will be recoverable.
DAMAGES: The aim of damages is to restore the tenant to the position he or she would have been in had there been no breach  of repairing covenant.  The amount of damages awarded will depend on the circumstances of the case, and the true losses suffered by the tenant.  A compensation award to a tenant might include the cost of the tenant carrying out the repairs on the landlord's behalf, the cost of restoring internal decoration, compensation for the inconvenience of living in premises that were out of repair, compensation for injury to health, the cost of moving to and occupying alternative accommodation, and the cost of storing furniture.
SET-OFF / SELF HELP: Tenants sometimes withhold rent on the basis of using the rent to pay for repairs that the tenant claims the landlord should have carried out, but generally the tenant has no legal right to set-off in this way.  However in certain circumstances, a tenant may use the rent to pay for repairs or offset rent arrears where the landlord has clearly breached a repairing obligation and has failed or refused to carry out the repairs.  This right is provided only in the circumstances outlined above and when exercised according to a clearly defined procedure; the tenant must inform his landlord that he intends to carry out the repairs himself and submit any estimates, in order to allow the landlord a chance to carry out the works himself.
SPECIFIC PERFORMANCE: A court can order a landlord to carry out his repairing obligations.

Other Repairing Obligations:

EXPLICIT TERMS:
This Factsheet only covers the landlord's main repairing obligations implied in law.
In addition, the tenancy may be subject to any further terms agreed in the tenancy agreement.
COMMON PARTS:
The common law will imply certain repairing obligations for common parts:
  • Where the landlord retains control of a part of a building and lets another part, he must maintain that first part so as to prevent injury to the tenant or damage to the property e.g. maintaining a common roof to prevent damp entering .
  • where the tenant is given a contractual right to use another part of a building other than that let, e.g. a shared bathroom, the landlord is under an obligation to maintain that part for use by the tenant.
  • the landlord must maintain facilities necessary for use by the tenant, e.g. lifts, rubbish chutes etc.
Because the common parts are considered to remain within the landlord's control, tenants are not required to give the landlord notice of disrepair before the obligation to repair arises within the common part.
If remedial works necessitate access to parts of the building or installation over which the landlord does not have a sufficient right to gain access, it is a defence to an action for breach of section 11 to show that s/he made all reasonable efforts to gain access but has been unable to do so.
GAS & ELECTRICAL APPLIANCES:
Landlords are required by the Gas Safety (Installation and Use) Regulations 1998 to ensure that all gas appliances (and any flues and pipework serving such appliances) are maintained in good order and that an annual safety check is carried out (although landlords are not responsible for maintaining gas appliances which the tenant is entitled to take with him.  Further information is given in a separate factsheet (Letting Factsheet No. 7)
Similarly, the landlord is required to ensure that, prior to any letting, the electrical system and any electrical appliances that are supplied as part of the rented property such as cookers, kettles,  toasters, washing machines and immersion heaters are safe to use.  Further information is given in a separate factsheet (Letting Factsheet No. 4)
FIRE SAFETY OF FURNITURE AND FURNISHINGS:
Any furniture and furnishings supplied by the landlord within the rented property must meet the fire resistance requirements in the Furniture and Furnishings (Fire)(Safety) Regulations 1988 and most modern furniture will have a manufacturer's label attached to it which identifies whether the particular item meets the relevant standards.  The Regulations apply to all furniture, both new and second-hand that is provided in rented accommodation although there are exemptions for items made before 1950.  Further information is given in a separate factsheet (Letting Factsheet No. 3)
FITNESS FOR HUMAN HABITATION:
The fitness for human habitation rules under the Housing Act 1985 have been replaced by the more extensive and complicated provisions of Part 1 Housing Act 2004.  These provide a new system for assessing housing conditions and enforcing housing standards called the Housing Health and Safety Rating System (or HHSRS for short ).  Action by authorities will be based on a three-stage consideration: (a) the hazard rating determined under HHSRS; (b) whether the authority has a duty or power to act, determined by the presence of a hazard above or below a threshold prescribed by Regulations (Category 1 and Category 2 hazards); and (c) the authority's judgement as to the most appropriate course of action to deal with the hazard.
This provides for a scoring system for different types of hazard likely to be found in rented properties. A 70 page guidance to this new scheme for landlords, agents and other housing professionals has been published by the Department of Communities and Local Government, the successor to the much lamented Office of the Deputy Prime Minister, and is available on the DCLG web site at www.dclg.gov.uk.
This is a suggested process from the Guidance that a landlord could adopt to minimise the chances of any unacceptable hazards.
1. Inspect property
Room-by-room, checking elements, fixtures and fittings.
Check common parts (e.g., stairs and shared rooms and amenities).
Check outside the building, looking at the external elements, and the yards/gardens and paths.
Record any deficiencies, disrepair or anything else that may give rise to a hazard.
2. Deficiencies Hazards
Check if any of the deficiencies and faults contribute to any one or more of the 29 hazards specified in the Guidance.
Do deficiencies -
(a) Increase the likelihood of a harmful occurrence? or
(b) Increase the severity of the harm?
3. Remedial action/work
Decide what needs to be done to remedy deficiencies and to reduce risks as low as reasonably practicable.
Work out a timetable for having works done.
Some action may be very urgent where an immediate risk to current occupiers is identified, others may be less urgent.
4. Keep Records
Record the programme of works.
Record date when works finished.
5. Review
Check that hazards have been removed/minimised.
Re-inspect property. (How frequently this needs to be done depends on the age and type of property, and whether there has been any change of occupants.  Some elements or facilities will need to be checked more frequently than others or when required by law (e.g., gas appliances) or by an accreditation scheme.)
As this new scheme is in its infancy it is less than clear just how it will work.

Sources for Further Information:

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