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Statutory implied terms


>> Landlord and Tenant Act 1985 (as amended)

Section 11 of the Landlord and Tenant Act 1985 (which replaced S.32 of the Housing Act 1961) is a statutory implied term that the landlord shall keep in repair:

  • The structure and exterior of the dwelling
  • The installations for the supply of water, gas, electricity and sanitation
  • The installations for the supply of space heating and water heating
  • The communal areas and installations associated with the dwelling (S.11 as amended by S.116 of the Housing Act 1988)

The Act also provides that the standard of repair necessary will vary depending on the ‘age, character, and prospective life of the property and its location’. So a landlord need not maintain a tatty run-down property in an inner city area to the same high standards expected in an expensive central London apartment.

>> Access to property

Landlords (or people authorised by them) who are subject to the provisions of section 11 have the right to access the property for the purpose of viewing its condition and state of repair [section 11 - subsection (6)]. The access can only be at reasonable times of the day and after giving not less than 24 hours notice in writing.

This section does not extend to actually carrying out the repairs. However, the right to enter to do repairs (subject to notice being given) is allowed by section 16 of the Housing Act 1988 which provides that it shall be an implied term of every assured and assured shorthold tenancy that the tenant shall afford to the landlord access to the dwelling-house let on the tenancy and all reasonable facilities for executing therein any repairs which the landlord is entitled to execute. It is also generally included in tenancy agreements. In addition, if the tenant refuses to allow the landlord access to carry out the repairs, the tenant will not be in a position to complain about the property or to claim for damages for disrepair or for personal injury caused by the disrepair. Indeed if the tenant’s failure to allow the landlord access to do the works results in further deterioration or damage to the property, they may be liable to the landlord (entitling the landlord, for example, to deduct the additional costs incurred from the damage deposit).

Note that although section 11(6) gives the landlord the right to enter the property (after having given notice), this does not mean that the landlord is entitled to enter the property at that time regardless if the tenant asks the landlord not to. However, if the particular appointment time is inconvenient, the tenant will be expected to consent to an appointment at another time. If the tenant refuses to allow the landlord access at all, the tenant will be in breach of contract.

In some circumstances (for example if the property is clearly in disrepair) this may entitle the landlord to apply for an order for possession.

Generally landlords should be wary about entering the property when the tenant is not there, without their express permission. They may be making themselves liable to a claim of harassment, or be vulnerable to allegations of theft if the tenant claims that property has gone missing.

>> Breach of repair obligations

The landlord will not be liable for works or repairs caused by the tenant’s breach of his obligations under the tenancy.

Action can be taken by the tenant in the County Court for breaches of the landlord’s repairing obligation. This is a civil action, [see A brief introduction to law] and tenants can claim compensation for damage and inconvenience resulting from the breach.

The landlord should receive notice of this in advance of any claim being brought, as tenants are now obliged to comply with the ‘Pre-action Protocol for Housing Disrepair’. This protocol provides that tenants must inform their landlord in writing (an ‘early notification letter’ followed by a ‘letter of claim’) of all relevant matters before issuing legal proceedings. The protocol gives full details of the information to be provided and specimen letters.

If the tenant does not comply with the protocol, the landlord can ask the court to stay the claim until the provisions of the protocol have been complied with. A copy of the protocol can be downloaded from the court service website at:

www.hmcourts-service.gov.uk

Section 17 of the Landlord and Tenant Act 1985 requires specific performance by the landlord where there has been a breach, i.e. the payment of compensation will not be sufficient remedy. This means that the county court can make an order requiring the landlord to fulfil the express or implied repairing terms of the tenancy agreement. The county court can make an injunction requiring the landlord to do repair work, which may or may not be within the terms of the contract. If the landlord fails to carry out the works required by the court order, the landlord, or its named officer, can be committed to prison for contempt. The county court can alternatively direct that the repairs be undertaken by or on behalf of the tenant at the landlord’s expense.

Damages can still be claimed even if the works are carried out by the time the case reaches Court.

In practice it is rare for these extreme measures to be used. However you need to be aware that these penalties exist, and should be careful to deal promptly with your repairing obligations when they arise. It is after all protecting your financial investment. If the property is properly insured most costly repairs and works should be covered by the insurance policy.

>> Defective Premises Act 1972

The landlord is not impliedly liable for dangerous defects; however Section 4 of the Defective Premises Act 1972 places a duty of care on the landlord in relation to any person who might be affected by a defect, ‘to take such care as is reasonable in all the circumstances to see that they are reasonably safe from personal injury and from damage to their property caused by a relevant defect’.

This is civil redress [see A brief introduction to law]. A defect is relevant if the landlord knew about it or should have known about it - the fact that a defect has not been reported or there has been a failure to inspect (e.g. rotten floorboards or joists) does not remove liability. It is for this reason that it is important that landlords (or their agents) carry out regular inspections.

In this case the premises includes the whole of the letting - i.e. including gardens, patios, walls, etc. - and can be applied to the communal areas of estates, including lifts, rubbish chutes, stairs and corridors. Section 4 provides tenants or other affected persons with the right to seek damages for personal injury or damage to property.

>> Occupiers' duty of care

Section 2 of the Occupiers’ Liability Act 1957 provides that the occupier of a property has a duty of care to all visitors who come onto their premises. This applies to landlords where they are the legal occupier of some parts of their rented stock e.g. using areas such as lifts and common parts.

The duty means taking such care as would be reasonable in all circumstances to see that the visitor is reasonably safe in using the premises for its purpose. The landlord is liable for any injury caused to a visitor as a result of defects in the part of the building occupied by the landlord.

>> Local authority repair powers

Local authorities have statutory duties and powers to take enforcement action to deal with properties containing hazards identified under the new Housing Health and Safety Ratings System (HHSRS) [See HHSRS]. Under the HHSRS which is set out in Part 1 of the Housing Act 2004, local authorities have a duty to take appropriate enforcement action in relation to Category 1 hazards, and discretion to act in relation to Category 2 hazards in residential properties.

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