to keep in repair or maintain anything which the tenant is entitled to remove from the dwelling-house.
1.2 Common Law Implied Terms
Common law terms are terms implied into any residential tenancy (whether written or verbal) by various case laws that have taken place over the years.
The main terms implied by common law are set out below.
Fit For Human Habitation
The property should be in a reasonable state of repair both internally and externally and fit for human habitation at the start of the tenancy. There should be no dampness, either in the form of rising or penetrating damp, from the outside.
Condensation may be as a result of the tenant’s behaviour but it may also have implications for landlords if the ventilation is inadequate or some structural problem is causing it. An investigation of the cause will be needed to be able to decide responsibility.
Tenant Like Manner
A tenant must use the property in a tenant-like manner. This has been helpfully defined by Lord Denning LJ (who went on to become a distinguished Master of the Rolls) in the case Warren v. Keen (1953) 3 W.L.R. 702.
“…what does “to use the premises in a tenant like manner” mean? It can, I think, best be shown by some illustrations. 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 the 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 into disrepair through fair wear and tear or lapse of time, or for any reason not caused by him, then the tenant is not liable to repair it.”
The tenant must therefore repair damage to the premises caused, wilfully or negligently, by him, his family and his guests.
Lord Denning is in effect stating that any DIY task that does not need any great degree of experience or, more to the point, expertise, is down to tenant responsibility. In summary if an incident is a day to day occurrence to be expected when living in a property, whether as owner or tenant (light bulbs failing, drains or gutters blocked because of the tenants own actions, keeping the property dry by closing windows in rainstorms, changing fuses, invasions post tenancy commencement of vermin, bees or bats etc), then any correction costs are all down to the tenants.
Permit Waste (Damage)
The tenant shall not permit waste. The tenant has the responsibility to ensure the property is not damaged deliberately or negligently during the course of the tenancy by him or by others. A practical example of permissive waste is a tenant who fails to notify the landlord of a leak in the roof. The roof leak is a section 11 repairing obligation for the landlord. However, if the tenant does not let the landlord know of the need for the roof repair, and as a result the ceiling falls down, the tenant is considered to have permitted the ceiling disrepair by failing to notify the landlord of the need for the roof repair.
Fair wear and tear
The tenant should leave the property in the same condition as when they took possession, fair wear and tear excepted. For example, spilling wine on the carpet etc. is not fair wear and tear but is damage by the tenant, accidental or not.
However, a worn carpet on stairs may be fair wear and tear.
Fair wear and tear has been held to be deterioration due to “natural forces”.
1.3 Terms Included In Tenancy Agreement
In addition to the statutory implied terms by section 11 and common law implied terms, any written tenancy agreement can contain further repairing obligations. The statutorily implied obligations under The Landlord and Tenant Act 1985 will apply in any event, but an express contractual provision may impose a greater liability on the landlord.
In the case of Welsh v Greenwich LBC (2001) 33 HLR 40, CA, the landlord was required to not just keep in repair but also to go further and was obliged to improve the flat to fulfil the “maintain the dwelling in good condition and repair” clause.
1.3.1 Terms Contracting Out Of Repairing Obligations
It is no good a landlord inserting a clause in the tenancy agreement making the tenant responsible for such items, as statute would overrule such a clause and render it invalid.
It is impossible for the landlord to indemnify against a legal obligation – for example the landlord cannot make the tenant responsible for the renewal of a gas safety record because the Gas Safety Regulations make it a landlord obligation. However, making the tenant responsible for any change of batteries in a smoke detector, can be inserted into the tenancy agreement as a responsibility of the tenant because there is no statute that dictates otherwise.
Any attempts to evade statutory rights and responsibilities by way of any standard term in the tenancy agreement, may result in the relevant term being found void. Examples might include clauses requiring rent to be paid without set-off as this would be an attempt to exclude the tenant’s common law right to set off against the rent any debt owed to the tenant by the landlord. Another example might be a clause requiring the tenant to be responsible for repairs to the gas appliances (as this is the landlord’s statutory responsibility).
1.4 White Goods
If the property is let with the benefit of white goods and any of them break down or simply wears out then, by default, it is the landlord’s responsibility to either repair or replace the item. However, this is an implied obligation based upon the fact that the landlord is supplying the appliance with the rent. Section 11 repairing obligations do not extend to appliances.
One exception would be if the tenant were to accept a reduced rental for the remainder of the existing agreement term if the item was not to be replaced or repaired.
It may be possible to exclude an item from an inventory thus entitling the tenant to “remove the item from the dwelling-house” but the landlord could not have it all ways. If the item is removed from the inventory and essentially given to the tenant, the item will become theirs and they will be entitled to sell the item or take it with them at any time including at the end of the tenancy. In such a case, the landlord may avoid the need to repair.
However, some terms attempting to refuse to repair but still requiring the item to be kept in good condition and to remain at the property might be seen as a sham and considered an unfair term under the Consumer Rights Act 2015. It will all depend whether the rent includes the use of such items or whether the item is truly the tenants.
1.5 Notice Of The Defect
Where the defect is within the demise (the parts of the property under the tenant’s control), normally, the landlord will only be liable for any repairs once he knows of the defect. This can result either from the landlord being told of the defect by the tenant (written notification is not essential) or because the landlord learns of the defect in some other way.
The landlord’s obligation in relation to property in the possession of the tenant is not an undertaking to prevent them ever getting out of repair during the continuance of the tenancy; it is an undertaking to do work of repair on the premises from time to time as and when they have become out of repair. Thus the landlord is not liable for breach of covenant as soon as the premises are in fact out of repair. Until the landlord has notice of the disrepair no breach arises; nor does any breach arise thereafter if the landlord then carries out the necessary work of repair with reasonable expedition (O’Brien v Robinson (1973) A.C. 912).
However, where the defect is within the common parts or parts of the building where the landlord retains control (e.g. a shared path in the case of a block of flats), the issue of notice is less clear. Potentially therefore a landlord can be liable for repair immediately a defect occurs.
In Edwards v Kumarasamy [2016] UKSC 40, the landlord let a flat in a shared block. The path (which was owned by the freeholder) became out of repair and the tenant did not give notice to the landlord about the defect. The tenant sued the landlord for damages and amongst several defences, the landlord argued that he had not received any notice of the defect and so was not liable until such notice was received.
The appeal court held that where the defect is not within the demise (i.e. a shared part such as in this case a path) and the landlord has equal control of that part, no notice is required-
In practice the tenant is likely to be the first person to become aware of the existence of defects falling within the landlord’s obligation. Accordingly it would be right to interpret the [section 11] covenant as requiring the giving of notice before the landlord’s liability arose. Although this might be a pragmatic way of limiting the landlord’s liability I cannot find it in the words of the statute.
Note 1: In the same case, the landlord also defended the tenant’s claim on the basis that as the landlord did not own the path and merely had a right of way, he had no right to “take up or mend the path”. The Court of Appeal held:
… Where, as here, there has been an express grant of an easement the grant will carry with it an ancillary right on the part of the dominant owner to carry out repairs on the servient owner’s land in order to make the easement effective. Thus in the case of the grant of a right of way the dominant owner is entitled to repair the way: Gale on Easements (19th ed) para 1–91; Newcomen v Coulson (1877) 5 Ch D 133.
The Supreme Court disagreed with the Court of Appeal. They found for the landlord, primarily on the basis that the path was not part of the sturcture and exterior of the property. The Court of Appeal held the view that the path outside was an extension of the hallway. As the obligations in section 11 refer to the structure and exterior of the building, the Supreme Court held that the path outside could not be held to be part of the building. Although this decided the case in favour of the landlord, the Supreme Court went on to look at the other issues so that judgement could be applied more widely. In doing so they looked at the need for notification and felt that in some cases notification may be needed and in other case not (unless the landlord owned the whole block of flats as opposed to a single flat). 1.6 Breach of Repair Obligations
A landlord who is in breach of the obligation to repair after notification is liable to pay the tenant damages and specific orders can be made by the court requiring the landlord to carry out repairs.
Landlords who fail to fulfil their repairing obligations may also suffer problems seeking possession under the “retaliatory evicition” rules contained within the Deregulation Act 2015. This can prevent a landlord from serving a section 21 notice, or even invalidate an existing one in certain circumstances.
Action can be taken by the tenant in the county court for breaches of the landlord’s repairing obligation. This is a civil action, and the tenant can claim compensation for damage and inconvenience resulting from the breach. Section 17 of the Landlord and Tenant Act 1985 allows the tenant to get an order for specific performance (saying the landlord will have to do the repair) where there has been a breach, i.e. the payment of compensation may 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.
Counterclaims for disrepair are amongst the most common counterclaims made when possession is sought for rent arrears. Cases have been brought where landlords have come away from court having to pay the defaulting tenant substantial sums of money where such a counterclaim is made.
The repairing obligations continue even if the tenant is not paying the rent.
1.6.1 Set-off
Where a landlord is in breach of the obligation to repair, there may be occasions when the tenant is entitled to set-off some money from rent due. This in turn could defeat a possession claim which is based on rent arrears. A set-off could arise at common law or by equity.
Common law
Where the landlord is in breach of the repairing obligation and the tenant has carried out a repair himself, the tenant may be entitled to off-set the cost of those repairs from the rent.
In British Anzani (Felixstowe) Ltd v International Marine Management (UK) Ltd (1978) EWHC QB 2 it was said-
… there are at least two sets of circumstances in which at common law there can be a set-off against rent, one where the tenant expends money on repairs to the demised premises which the landlord has covenanted to carry out, but in breach has failed to do so (at any rate where the breach significantly affects the use of the premises) and the other where the tenant has paid money at the request of the landlord in respect of some obligation of the landlord connected with the land demised. To this proposition there must be added two riders. First, that as the landlord’s obligation to repair premises demised does not arise until the tenant has notified him of want of repair, such notification must have been given before the set-off can arise; and secondly that the set-off must be for a sum which is not to be regarded as unliquidated damages, that is, it is a sum certain which has actually been paid and in addition its quantum has either been acknowledged by the landlord or in some other way can no longer be disputed by him, as for instance, if it is the subject of an award on a submission to arbitration …
A tenant should therefore be careful when spending money on repairs with the intention of setting-off from the rent. Any amount off-set must be such that it “cannot really be disputed by the landlord”.
Equity
Where the tenant does not actually carry out any repairs and as such no money is spent, contrary to popular belief, the tenant cannot simply withhold paying the rent until repairs are carried out (Taylor v Webb (1937) 2 K.B. 283).
1.7 Consideration For Agents
An important consideration for agents is that they should not instruct a contractor in the agency name unless the agent already has funds, or knows that funds will be available before the invoice is presented for payment. This is because if the agent instructs in the agency name then the contract is between the agent and the contractor and, more importantly, so is the responsibility to pay!!
It is perfectly acceptable for the agent to instruct a contractor in the landlord’s name, provided they are authorised to arrange such repairs.
2. Access
There are rules governing rights of access to inspect and then carry out repairs which are discussed in this section.
2.1 Right of Entry
The landlord, by the granting of the tenancy, deprives himself of the right to possession of the premises during its existence, and if he enters without the permission of the tenant, or without reserving to himself the right to do so, he is liable to be treated as a trespasser.
The right of a tenant to quiet enjoyment of a rented property without intrusion or disturbance by a landlord is a right implied into all tenancies which entitles the tenant to live in the property without disturbance from the landlord or people acting on the landlord’s behalf.
Generally, a landlord does not have the right to turn up unannounced to check on a property or tenant. It must be agreed mutually beforehand or proper notice served, where the landlord wishes to enter for a specific purpose, such as repairing a window. It has been held that breach of the repairing covenants can also be considered to be breach of the covenant of quiet enjoyment.
2.1.1 Inspection To Check For Repairs
Although commonly it is a term supplied in all good tenancy agreements, it is an implied term of all residential tenancies for less than seven years that the landlord may enter and inspect for repairs upon giving at least 24 hours’ notice in writing:
In a lease in which the lessor’s repairing covenant is implied there is also implied a covenant by the lessee that the lessor, 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.
(section 11(6) Landlord and Tenant Act 1985).
Where a landlord serves a notice under section 11(6) to inspect and the tenant responds by refusing access, the landlord may not enter. The tenant’s refusal will be a breach of the tenancy (whether the tenancy is in writing or verbal) but the landlord’s contractual right to enter can only be enforced through the court.
If however, the landlord stipulates that they will be entering on a specified date at a specified time and that they will use their keys to enter, and the tenant remains silent, it will be lawful for the landlord to enter and carry out the inspection.
It is important to note that the intention of the inspection must be “for the purpose of viewing their condition and state of repair”. If the purpose of the inspection is for some other reason, section 11(6) cannot be relied upon as being a right of entry and the tenancy agreement should be consulted.
Of course, the tenant can always agree entry which is acceptable in all cases.
Rather unusually, the legislator only provide an implied term that there is a right of entry for the purpose of an “inspection” - not to actually carry out the repair though the right to enter for the repair is implied in the obligation to repair.
2.1.2 Entry To Carry Out Repairs
The right to enter for the repair would be an implied term, as the law says the landlord must do the repair, it is implied s/he has the right to enter to do the repair. However, the right to enter to do repairs (subject to notice being given) is generally included in tenancy agreements.
Further, where the tenancy is an assured or assured shorthold tenancy, there is a right of access to carry out repairs provided by section 16 The Housing Act 1988.
This right also creates an explicit right for the landlord to use “reasonable facilities” (e.g. electricity or water) for all landlord repairing obligations (statutory or contractual).
Section 16 - Access for repairs.
It shall be an implied term of every assured 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 unclear whether “reasonable facilities” extends to making cups of tea for builders!
2.2 Refusal Of Access To The Property
Where a tenant refuses access to inspect a dwelling, a landlord may need to obtain an order from the court enforcing specific performance of the implied term of the tenancy to allow entry.
Where entry is required to carry out actual repairs and the tenant refuses, 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.
If any failure by the tenant to allow the landlord access to do the works results in further deterioration or damage to the property, the tenant may be liable to the landlord (permissive waste, entitling the landlord, for example, to deduct the additional costs incurred from the damage deposit or supporting any claim to that part of the deposit in the event of a dispute over a protected deposit).
If a particular appointment time is inconvenient, the tenant will be expected to consent to an appointment at another time.
From 13 May 2014, if the tenant has refused entry in relation to carrying out a repair, the landlord may be entitled to possession of the property (where the tenancy is assured or assured shorthold) under ground 14(aa) contained in schedule 2 Housing Act 1988.
Ground 14(aa) allows possession where-
The tenant or a person residing in or visiting the dwelling-house—
…
(aa) has been guilty of conduct causing or likely to cause a nuisance or annoyance to the landlord of the dwelling-house, or a person employed (whether or not by the landlord) in connection with the exercise of the landlord’s housing management functions, and that is directly or indirectly related to or affects those functions,
…
Service of a section 8 notice (the same notice commonly used for rent arrears) containing ground 14(aa) would be required in the first instance followed by an application for a possession order to the court.
This ground is discretionary though so even if proven, the court will only order possession if it’s reasonable to do so. A landlord may prefer to use the section 21 (two months no fault) procedure instead if available.
This ground will be available for any of the landlord’s housing management functions which could include obtaining gas safety records or fire alarm testing to name a couple.
3. Other Legislation Affecting Repairing Obligations
In addition to section 11 Landlord and Tenant Act 1985 and common law implied terms, there are other pieces of legislation which affect landlords and their repairing obligations.
3.1 Defective Premises Act 1972
This Act affects everyone from the architect and builder right down the supply chain and like the Consumer Protection Act 1987 affects those “acting in the course of a business”. The architect and builder have a duty of care to ensure the building work is designed and completed in a workmanlike manner, with proper materials and to ensure it is fit for human habitation. It states “a duty to take such care as is reasonable in all circumstances to see that they are reasonably safe from personal injury or from damage to their property caused by a relevant defect”. This is civil redress.
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 checks on the property.
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 or multi-occupancy buildings, including lifts, rubbish chutes, stairs and corridors. Section 4 provides tenants or other affected persons with the right to seek compensation for personal injury or damage to property.
Section 4 imposes a duty on landlords to see that anyone who might be affected by a defect is reasonably safe from danger or personal injury. This situation differs from section 11 Landlord and Tenant Act 1985 repairs in that there is no implied requirement for the tenant to notify the landlord of the need for a repair for liability to exist. The landlord is liable for the defects from the beginning, the earliest of:-