Negligence is a broad concept, but loosely defined it is a failure to take proper care. It operates under the law of tort, which requires that for liability to be imposed for a wrongdoing it must firstly be shown that:
- wrongdoer was subject to a duty of care;
- the wrongdoer was in breach of that duty, and
- damage to the claimant resulted from this breach.
Negligence is a standard of reasonableness; a duty of care is breached where a person acts below the standard of care required, by doing something that a reasonable and prudent man would not do or by not doing something that a reasonable would do.
A duty of care will arise where the person under the duty ought reasonably to have foreseen that another person might be affected by his actions or omissions. A threefold test for a duty of care was introduced in Caparo Industries v Dickman :
Foreseeability – harm must be a reasonably foreseeable result of the defendant's conduct;
Proximity – the claimant must have some form of relationship with the defendant, and
Fairness – it must be fair, just and reasonable in the circumstances for a duty of care to be imposed.
Traditionally, landlords did not owe a duty of care to their tenants due to the long-established maxim of caveat emptor, meaning ‘buyer beware’, but both common law and statute have since evolved to offer greater protection to tenants and in some situations now impose certain duties on landlords. If a landlord fails to discharges these duties, they may be liable to the tenant.
The courts imply certain duties into all tenancy agreements, and the landlord must fulfil these duties even though the landlord and tenant did not expressly include these in their agreement.
These implied duties are exceptions to the caveat emptor rule, and include:
- The landlord has a duty to ensure that furnished property is fit for human habitation at the beginning of the tenancy, as the tenant is unable to properly examine the premises.
- A landlord who owns or retains control of parts of the tenanted property, such as stairways, lifts and corridors, is under a duty of care to keep those parts of the building in condition so that they do not cause injury to the tenant or damage to the tenant’s property. This duty arises even if the tenant does not inform the landlord of the hazard or defect.
- A landlord who was responsible for part of the design or building of the premises owes a duty of care in respect of this work; where a person has undertaken a duty that requires special or extraordinary skill they are expected to use a higher standard of care.
- A developer has a duty to exercise reasonable care in his work; builders, developers, architects, surveyors and designers who fail to exercise reasonable care when working on a building may be liable to the occupiers of the building for any damage or injury that results from their negligence.
Legislation imposes further duties of care on landlords:
- Landlord and Tenant Act 1985 - section 11 imposes on the landlord a duty to keep the structure and exterior of the property in repair, and also to keep in repair and proper working order the installations for the supply of essential services including those associated with space heating and heating water.
- Defective Premises Act 1972 – section 4 imposes on landlords a duty of care to ‘all persons who might reasonably be expected to be affected by defects in the premises’. This duty extends to damages for personal injury or damage to these persons’ property, and damages can be recovered not only by the tenant but also by any visitors to the property. The landlord is responsible for all damages caused by a ‘relevant defect’, which is one ‘arising from, or continuing because of, an act or omission by the landlord which actually constitutes a breach of his repairing obligation or which would have done so if he had been given notice of it’.
- This duty is more limited than most of those at common law, as it is owed where the landlord knows or ought to, in the circumstances, have known of the of the relevant defect. This may cause a landlord to be in breach of his duty even where he does not have actual knowledge of the defect. Part of this provision, s. 4(4), allows the tenant to bring an action for disrepair where the landlord has an express or implied right to enter the premises to carry out repairs. s. 4(4) also implies an additional duty on the landlord to maintain and repair parts of the premises where the landlord has reserved himself a right of access to these parts to carry out these repairs.
- s. 4(4) is the only part of s. 4 that implies a duty of care on the landlord where there is no obligation to repair. Recently, the courts have rules that the s. 4 requirement that landlords keep property in good condition does not oblige the landlord to put it into a good condition, or to keep the premises safe.
- Occupiers’ Liability Act 1957 – section 2 imposes a duty of care on the occupier of premises to ensure that visitors to the property are reasonably safe. A tenant with exclusive possession of the property is regarded the occupier, and this therefore transfers the duty from the landlord to the tenant. A landlord who retains control of part of the premises, however, will be regarded the occupier, and will therefore will owe this duty of care to all tenants, and their visitors. The Occupiers’ Liability Act 1984 further extends the duty of care to cover persons who are not lawful visitors, such as trespassers. The occupier will owe a duty of care to these people if he is aware, or has reasonable grounds to know, of a danger on the premises and that a person may be in the vicinity of the danger and the risk is a real one against which he may reasonably be expected to offer some protection.
Other than the obligations imposed on the landlord of common parts, or under the Defective Premises Act 1972, almost all repairing obligations require that the landlord has knowledge off the disrepair within the property, before any liability arises.
A duty of care may be owed by the agent to both the landlord and the tenant. The Consumer Rights Act 2015 obliges all persons providing a service to a consumer to exercise reasonable care and skill in the provision of his service. The landlord may rely considerably on the skill and expertise of the agent they appoint to act for them, so the agent is under a duty to exercise reasonable care and skill in carrying out their duties and in advising the landlord. The type of care and precautions that a competent managing agent should take include:
- correctly advising a client on rental value;
- declaring any self-interest (such as that the tenant is a friend of the agent);
- taking up appropriate references and credit checks on a tenant;
- setting up the correct type of tenancy with the correct forms;
- acting with expedience if serious maintenance issues occur;
- taking appropriate precautions with regard to the security of any keys held;
- informing the landlord of their various legal obligations, such as those under statute;
- checking for damage or dilapidations to a property either during or on termination of a tenancy.
Where a managing agent undertakes any repair or maintenance work himself, he will be liable for any negligent acts and the loss which results from them. The agent may then be liable to the tenant. If the tenant can show that the landlord was responsible for the repair, the landlord will also be liable for breach of contract under the tenancy agreement.
Breach of a duty of care may leave the wrongdoer liable to the person to whom the duty was owed where this person suffered damage as a result. Monetary damages may be awarded to this person by the courts.