Repairs - the responsibilities of the landlord and tenant
The landlord's responsibilities
The principal source of the landlord's responsibilities is statutory. The Landlord and Tenant Act 1985 section 11, which is implied into all tenancies of less than seven years duration, states that the landlord must:a) keep in repair the structure and exterior of the dwelling, including drains, gutters and external pipes,
b) 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) keep in repair and proper working order the installation in the dwelling for space heating and heating water.
This provision is implied into all tenancies entered into after 24 October 1961 and imposes an obligation on landlords to effect basic repairs, which is absolute. 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 claim, then the court would not recognise that agreement. If there is an express term in the tenancy agreement to repair and it falls short of the requirements of section 11, the whole of section 11 will be implied into the agreement. However, it is possible for a term in the tenancy agreement itself to impose greater liability on the landlord than the statute requires.
'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', however, does not include any duty to effect improvements. If there is a defect in construction, then this will not be actionable under s11, as the property will not be in disrepair. For example, a claim by a tenant against a landlord for damages 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.
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 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.
If the tenant is in breach of his duty to behave in a tenant-like manner (for more information see below) 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.
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" 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. But, where the repair is 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.
'Exterior', for the purposes of s11, is the outside or external parts of a dwelling, but does not include items such as outside paving, garden walls and gates. But the Court of Appeal has held that, in interpreting the Defective Premises Act 1972 in conjunction with Landlord and Tenant Act 1985, 'premises' could include the whole of the subject of the letting including, for example, gardens and paving.1 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 probably those such as internal plaster, skirting boards or internal doors. Although the term is not limited to those parts which are load bearing, a particular element must be a material or significant element in the overall construction.2 A pipe which is choked has been held to be out of repair, although tenant would normally be responsible for clearing pipes and drains blocked by his own waste.Tenant's responsibilities
Common law rather than statute sets out the tenant's responsibilities. The leading case on the tenant's repairing responsibilities is Warren v Keen.3 This case concerned a tenant on a weekly statutory tenancy, but the law would apply in any tenancy situation. In this case the landlord sued his tenant for deterioration in the state of the premises. Although there was no covenant on the part of the tenant to do repairs, the landlord sought to put this obligation on the tenant, claiming the tenant had a duty to keep the premises wind-and-water-tight and to make general repairs.This was an important case in defining the parties' respective repairing obligations. In this judgement, Lord Denning LJ stated:
"What does 'to use the premises in a tenant-like manner' mean? The tenant must take proper care of the place. He must, if he is going away for the winter, turn off the water and empty the boiler. He must clean the chimneys, when necessary and also the windows. He must mend the electric light when it fuses. He must unstop the sink when it is blocked by his waste. In short, he must do those little jobs about the place, which a reasonable tenant would do. In addition, he must, of course, not damage the house wilfully or negligently; and he must see that his family and guests do not damage it; and if they do, he must repair it. But apart from such things, if the house falls out of repair owing to fair wear and tear, lapse of time or for any reason not caused by him, then he will not be liable to repair it."
As a result, a weekly tenant was held not liable to pay for repairs to damp and decaying walls of a house, since the disrepair was caused merely by the lapse of time which had caused the walls to require repointing. Nor was this tenant liable to pay for repairs to decayed window-sills, which had fallen into that condition for want of external repainting at regular intervals.
The tenant should not damage the property and should make sure that his family and guests do not so. If they do, he may be responsible for the damage. Under the Rent Act 1977, the Housing Act 1985 and the Housing Act 1988. The landlord can seek possession where a tenant or someone living with him has damaged the property. But, the tenant is not responsible for carrying out those obligations that are the duty of the landlord. The tenant is responsible for taking precautions to guard against frost damage to the water pipes when going away for the winter. Such damage is potentially catastrophic due to the risk of subsequent flooding when the pipes do eventually thaw whilst the property is still unoccupied. Clearly, to help the tenant perform this duty, it is important that the landlord informs the tenant of the position of any stopcocks and relevant instructions concerning their use. Yet, landlords owe a duty of care to any tenant, once informed that a pipe is frozen, to assist the tenant to abate resulting hazard.
Whilst the responsibilities of both landlord and tenant can be identified in general terms, as indicated above, the problems usually arise in the 'grey' area between the two sets of responsibilities.
References
1 McAuley v Bristol City Council [1991] 2 EGLR 532 Irvin v Moran [1991] EGLR 260
3 [1954] 1 QB 15