Letting Handbook 3

Back to contents Disrepair and FitnessThe Contractual Repairing Obligations In the section below, we will look at the contractual rights of the landlord and tenant with respect to their repairing obligations. The obligation will arise from two main sources: • Express terms - i.e. the written (or verbal) terms agreed in the tenancy agreement • Implied terms - terms implied into the agreement by statute or common lawExpress Terms The tenancy agreement will normally contain details of the repairing obligations of the landlord (e.g. structural and exterior repairs) and repairs that are the responsibility of the tenant (e.g. decorating and damage caused by the tenant). These terms are called express terms. However, no matter what provisions the tenancy agreement does or does not make, where the repairing obligations are covered by statute the landlord cannot transfer these responsibilities to the tenant by including a covenant in the agreement to that effect. Repairing covenants In any lease of residential property for a term of less than seven years, the repairing obligations will be implied by s.11 of the Landlord and Tenant Act 1985 (LTA) which is discussed in detail below. In most cases, this is used as the basis for the express repairing obligation term in the tenancy agreement, and the tenancy agreement simply contains a clause stating that the repairing obligations are those as defined in section 11 of the Landlord and Tenant Act 1985. For many lettings, landlords do not wish to undertake any further repairing obligations than those specified in s.11, and in shorter lettings, the landlord will not generally wish the tenant to interfere with the internal decorations or do anything that might detract from the value and good order of the property (in contrast to longer residential leases where it is common practice to require the tenant to maintain the internal decorations in good repair). Care must be taken when preparing a tenancy agreement with repairing covenants. It is important to note that an express provision to ‘repair and maintain’ which has been added to a tenancy agreement confers additional repairing duties on the landlord over and above those contained within s11 of the Landlord and Tenant Act 1985. The covenant to ‘maintain’ infers that the landlord ought to have known about any disrepair (i.e. via a regular maintenance programme) and a covenant to ‘keep in good repair’ creates an obligation on the landlord to not allow the premises to fall in to disrepair. In these cases a notice of disrepair will not need to be given before a tenant can claim breach of duty, thus increasing the liability of the landlord. In the case of Houses in Multiple Occupation and flats or maisonettes that include common areas, agreements may contain express repairing obligations dealing with these areas and the overall structure of the building, on both landlords and tenants.The Letting Handbook 11-5 © The Letting Centre 05/2017

Back to contents Disrepair and FitnessCovenants Implied by Statute Regardless of what the express terms of the tenancy agreement may contain - there are certain statutory obligations to repair placed on landlords (in particular those with short or periodic tenancies) that are implied into tenancy agreements. The Landlord and Tenant Act (LTA) 1985 makes it impossible for landlords to avoid repairing obligations and it is one of the few pieces of legislation which had retrospective effect because it applies to tenancies entered into after 1961. The Housing Act 1985 sets out the principal definition of unfitness for human habitation and puts the burden on local authorities and not on the tenant, to deal with the matter. The Defective Premises Act 1974 allows people other than tenants to sue for disrepair. The common law actions of nuisance and negligence have also proved to be of application in the area of disrepair. The Environmental Protection Act 1990 has defined what will amount to a statutory nuisance which is now a criminal offence dealt with in the Magistrates Court. These are the major provisions in respect to disrepair in residential property.The Landlord and Tenant Act 1985 s11 (for text of s11 LTA 1985 see Appendix B) Section 11 of the Landlord and Tenant Act 1985 is implied into all tenancies of less than seven years entered into after 24 October 1961 and it implies an absolute and non-excludable obligation on landlords to effect basic repairs. Section 11 cannot be excluded from any residential tenancy and a landlord cannot negotiate with the tenant that section 11 will not apply to the tenancy. If the landlord did this and the tenant then chose to pursue a section 11 disrepair the court would not recognise that agreement. If there is an express term in the tenancy agreement to repair and it falls short of section 11, the whole of section 11 will be implied into the agreement. Section 11 also applies to longer tenancies in certain circumstances. Section 11 LTA 1985 states that a covenant is implied into a lease by the landlord: 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. ‘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. 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.The Letting Handbook 11-6 © The Letting Centre 05/2017

Back to contents Disrepair and Fitness Structure and exterior Section 11, LTA 1985 makes provision for disrepair to the structure or exterior. ‘Exterior’, for the purposes of s11, is the outside or external parts of a dwelling but does not normally include items such as separate outbuildings, garden fences 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, 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. Case Law Example: Condensation - but no disrepair The house in which the tenants lived suffered from severe condensation which caused appalling living conditions for the tenants including wood rot, fungus and mould growth. The house was virtually unfit for human habitation. The Court of Appeal found that there was no disrepair under s32 of the Housing Act 1961 (now s11 of the Landlord and Tenant Act 1985) as the condensation causing the damp did not relate to disrepair to the structure or exterior; the problem lay in the original design of the building. (Quick v Taff Ely BC 1986 2- Court of Appeal) 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 the 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. Notice The landlord’s obligations under section 11 will not normally arise until he has been given notice of the defect. 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. Case Law Example: Notice of Disrepair The tenant and his wife were in bed one night when the bedroom ceiling collapsed on them. The fall was caused by a latent defect. Neither the tenant nor the landlord was aware of the defect until the collapse occured. The House of Lords held that no liability arose until the landlord had information about the existence of the defect in the premises which would put a reasonable person on enquiry as to whether works of repair were needed. (O’Brien v Robinson, [1973] AC 912)The Letting Handbook 11-7 © The Letting Centre 05/2017