Location

These notes are intended as a layman’s description of the essence of what the legal requirements are. They should always be used in conjunction with the full text of the Acts and subsequent legal interpretations of them. These Acts and interpretations may also change after these notes have been produced. Legal help should always be sought if you are uncertain on any point.

Material contained in this publication is the copyright of TFP and may not be copied, stored or reproduced in any way without the written permission of TFP.

Introduction

The Housing Act 2004 (‘the Act’) is major legislation, originally best known in the media for the “Sellers Pack”, more correctly called Home Information Packs. However, in reality, the majority of the Act has far more impact on residential lettings than sales. In fact, six out of seven of the parts of the Act have at least some impact on letting.

The aim of the Act is to improve the quality of homes in a physical sense and to improve the management of rented properties. The latter part introduces statutory controls on the handling of assured shorthold tenancy deposits.

If the law works are they intend, tenants will still have plenty of choice of rented property, but it will be safer, in reasonable repair and should be well run.

It should be understood that much of this legislation is “enabling” legislation. This means that the legislation provides the power for further secondary legislation (regulations) to be brought in to introduce and amend the details. For this reason, the Act itself cannot answer every question as much of the detail is set out in the regulations.

Housing Health and Safety Rating System

Part 1 of the Act brings in a new Housing Health and Safety Rating System (HHSRS). This is relevant across tenures and so applies just as much to homeowners or social tenants as it does to private sector tenants. It does away with the fitness standards contained in section 604 of the Housing Act 1985 and replaces the old concept of “fitness for human habitation” with a new “people based” health and safety risk assessment. The new system is claimed to be people based because, although it looks at the property, it considers how the features of the property might affect the health and safety of the potential occupiers. The assessment now considers the most vulnerable class of person who might occupy the property, and seeks to ensure it is satisfactory for them, on the basis that if it is safe for the most vulnerable it is safe for all. The class of person considered most vulnerable (perhaps the very young or very old) may not be in residence, but the assessment still considers this. Notices can be served with a caveat that they become effective in certain circumstances. For example, a notice could be served that becomes effective on the change of tenant, or if any children are resident in the property. It is also people based in that it considers matters not in themselves harmful to the property (such as energy efficiency), but potentially harmful to the occupants.

The HHSRS part of the Act came into force in April 2006. The data on which HHSRS is built comes from the late 1990s and there are now calls arguing that HHSRS is out of date. In a stroke of irony, if the scheme is successful in improving property conditions, it will itself become out of date.

There is a considerable amount of information available, if only there was the time to read it. This includes inspection method regulations along with technical guidance and enforcement guidance. Additionally, the Department for Communities and Local Government (DCLG, formerly the Office of the Deputy Prime Minister, now the Ministry of Housing, Communities and Local Government) produced non-statutory guidance for landlords to help them understand the new scheme. Local Housing Authorities (LHAs) will be obliged to consider the statutory guidance in deciding how to act. The guide for landlords and property professionals can be found at: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/9425/150940.pdf

The work to design and introduce this new system started way back in 1998 with a view to targeting action against properties that were in poor condition. It is much wider than the old fitness standard as it also looks at things like energy efficiency and toxins (such as radon or asbestos) within the property.

The full list of 29 hazards, split into their four groups, is:

A deficiency is anything in the property that does not meet the “ideal”. The ideal is specified in the guidance and often uses the current building regulation standards. A hazard is a deficiency that could lead to a medical harm (including mental health) arising from the deficiency in the property and land.

An inspecting officer from the LHA will have to inspect the property and make a judgment on the likelihood of an “occurrence” happening in the next 12 months to someone in the most vulnerable group. This will be expressed as a simple number such as 1 in 1 (a certainty) or 1 in 5,600 (indicating that 1 out of every 5,600 such situations would result in a harm outcome in a 12-month period). They also have to make a judgment on the likely outcome of such an occurrence and these outcomes fall into four “classes of harms”.

The four classes of harm are decided by the likely type of medical problem that might occur and then each harm has a different weighting reflecting the seriousness of that type of harm. The more serious the harm, the greater the influence it will have on the final score.

Hazards can exist not only from a direct deficiency in the property, but can also arise from “deficiencies attributable to the behaviour of occupants or neighbours or from both sources together”. This would appear to widen the scope greatly and almost completely remove responsibility from the occupier to act in a way that avoids problems.

By multiplying the likelihood of the harm happening, by the seriousness of the harm, a total score for each hazard is achieved. This score will fall into one of ten bands called A to J. Scores in bands A to C are Category 1 hazards and the law requires the LHA to act. Scores in bands D to J are category 2 hazards and the LHA may take enforcement action but is not generally obliged to. They have used ten bands to move away from the concept of this being an exact science. The inspection considers hazards in the common areas as well as the individual dwelling. Likewise, the scheme uses “scale points” so, for example, a score of between 1 in 240 and 1 in 420 achieves a representative scale point of 1 in 320.

Though the scoring is based on the most vulnerable person, the enforcement action should be based on the actual occupier and this could mean that enforcement action is delayed until someone of a higher risk group moves in. Having assessed the property, the LHA must then consider if it has a duty to act or a power to act and then needs to decide upon the most appropriate course of action. Within the statutory guidance, the LHA has the choice of the most appropriate course of action in every circumstance. Section 5(2) of the Act lists the possible alternative actions available to the LHA:

• to serve an improvement notice under section 11;

• to make a prohibition order under section 20;

• to serve a hazard awareness notice under section 28;

• to take emergency remedial action under section 40;

• to make an emergency prohibition order under section 43;

• to make a demolition order under section 265(1) or (2) of the 1985 Act;

• to declare a clearance area under section 289 (2) of the 1985 Act.

The LHA cannot simultaneously require more than one course of action in respect of the same hazard. However, they can take subsequent action that is the same or different if the first action fails to remedy the situation. The LHA may carry out any work in default of the landlord actually doing the work. The cost of the works, management time and the cost of enforcement action can be recovered from the landlord. Section 6 even allows the LHA to purchase the property if this is felt to be the right course of action. Section 8 requires the LHA to provide a statement of reasons as to why the specific course of action was taken. The minimum required of the action is the removal of the category 1 hazard, but it may go further than this. If the property is licensed under parts 2 or 3 then the notice must be served on the licence holder. If not licensed, the notice should be served on the “person having control” for non-HMOs. For an explanation of the “person having control”, see section 263 of the Act for a definition, but basically it is the person entitled to receive the rent as landlord or agent. For non-licensed HMOs the notice is served on the “person managing” it. For an explanation of this see section 263.

The notice should not normally require work to start in under 28 days from the service of the notice (there are cases where faster action can be required). This is also the time generally allowed for appeals. Confusingly, the notice “becomes operative” after 21 days of being served. There is some confusion about the 21 and 28-day time limits. To be on the safe side and keep things simple, we advise that appeals are lodged within 21 days to ensure they are accepted (for example, improvement notices must be appealed in 21 days, prohibition orders in 28 days). Notices may be revoked, varied or suspended. Where a notice is suspended, there is an obligation on the LHA to review them at least annually.

Some of these notices are Land Charges, and will affect anyone buying a property. However, owing to the charge entry, new buyers should be aware of the notice before purchasing. New buyers will be considered to have taken the action of the previous owner and this will mean the right of appeal may have been lost. However, the LHA may agree to suspend or vary a notice if the owner is different.

Prohibition orders may cover a whole property or may just prohibit the use of, say, the top floor. Prohibitions may be general (covering all persons) or may simply prohibit the use of the dwelling or part of the dwelling for certain groups, such as those aged over 65 or under 15. Where there is a prohibition notice served, it removes the usual security provided by the Housing Act (and Rent Act) and would allow an application for a court order to evict tenants (section 33).

Where particularly serious problems are discovered, the LHA can take emergency remedial action to prevent harm to the occupiers. Additionally, the LHA can serve an emergency prohibition notice where it considers this necessary. The costs of such action are claimable.

Failure to comply with an improvement notice or a prohibition notice is a criminal offence carrying a fine up to level 5 (currently unlimited).

Owing to the wider extent of the inspection it is felt by some that the HHSRS inspection will take longer to do than the old fitness test. Properties that passed the old fitness test because there were no major hazards will get caught by the HHSRS system as it examines more areas than the old fitness standard.

It is intended that the new system will enable the LHA to target its action on the most serious of cases. Under HMO licensing there is a requirement to inspect licensed properties within five years. LHA are required to consult with the Fire Authority in respect of fire hazards or the common parts of flats.

Landlords and agents who manage new properties will have significantly fewer problems in this area than those managing older stock.

Safety Regulations

These basically divide into those under the Consumer Protection Act 1987 and the others.

The significant thing about the Consumer Protection Act 1987 is that it only affects those “acting in the course of business”. This means that private landlords letting out their own home while temporarily away would not be required to ensure their properties were compliant with Consumer Protection Act 1987 regulations. If they use an agent, the agent is clearly acting in the course of business and could therefore be committing an offence. Great care must therefore be exercised in these borderline cases.

It is also interesting to see that in the case of Leyttons (an Oxfordshire letting agent), Oxford Trading Standards chose to prosecute the agent not the landlord. They took this line because the agent, employed to manage the property for the landlord, was the one with day to day responsibility.

The definition of supply in section 46 of the act specifies that it includes selling, letting and even gifts!

The Consumer Protection Act 1987 allows for a maximum unlimited fine and/or six months’ imprisonment.

The Consumer Protection Act 1987 is the primary legislation covering the following secondary regulations:

Furniture and Furnishings (Fire) (Safety) Regulations 1988

Defines flame resistance standards for furniture “supplied in the course of a business” and this can include rented properties.

Here is an example of where the Consumer Protection Act 1987 has worked in the favour of the property manager or the landlord. This is because it is an offence to “supply in the course of a business” (meaning a new supply); renewals are not a new supply. However, if there is a change of tenant, it would be a new supply (even one of three sharers changing).

Any new pieces of furniture introduced to a letting as from 31 March 1993 are a 'first supply' and must be compliant with the regulations. Any property that was first let after March 1993 must be compliant from when it was first let.

Guidance is available on the internet. Hopefully, this should be a diminishing problem as furniture made before these regulations will be reaching the end of its useful life.

Electrical Equipment (Safety) Regulations 1994

These define the standards of electrical safety for appliances in a rented property.

Previously called the Low Voltage Electrical Equipment (Safety) Regulations 1989, these new regulations govern appliances running at between 50-1,000v AC (e.g. mains) and 75-1,500v DC (not likely to be found in rented property) and were brought in to comply with European Commission Directive 73/23/EEC 1973.

Now called the Electrical Equipment (Safety) Regulations 1994, the main difference is CE marking, which introduces a symbol to show it has met agreed standards for use anywhere in the EU.

These regulations are part of the Consumer Protection Act 1987 and therefore the 'supply in the course of a business' conditions apply.

Residential exclusions: Plugs and sockets, which have their own regulations, and electricity meters. It does not cover the mains wiring, simply the appliances that make use of that wiring.

The basic requirement is that nothing supplied in the course of a business should jeopardise the safety of people, domestic animals or property. Each item should be safe.

If an appliance requires instructions to be operated safely, these must be supplied. For items first put in the supply chain after 8^th December 2016 the rules require the manufacturers’ instructions to be supplied. For older appliances it just requires instructions in writing without defining it any further.

In a surprise case in 1999, an agent was prosecuted and one of the things on which they were found to be at fault was a failure to supply instructions. In this case, the appliance which did not have instructions was a fridge! If the fridge needs instructions for “safe use” then arguably every appliance needs them. This could be an enormous administrative nightmare to try to locate instructions for each appliance.

It is recommended that the instructions are listed on the inventory. Firstly, it shows they were provided and secondly, if they are not returned by the tenant, then the tenant could be billed for the cost of replacing them. If landlords are not able to provide instructions for the first letting, they could be charged by the agent for providing them in the first place.

Unlike the gas regulations where you inspect, record, give a copy to the tenant, etc. and which are fairly clear cut - in the case of the electrical regulations items are simply required to be safe. It is much harder to comply with these regulations because of this lack of clarity. Probably the best defence will be 'due care', and to stand any hope of succeeding in this you must keep records of any checks made. Portable appliance testing could be another line of defence. However, be aware that the obligation to supply safe appliances applies to each new letting and so could involve frequent visits by the electrician. Alternatively, annual checks by the electrician could be supplemented by a visual inspection between each letting, perhaps by the inventory clerk.

Some things are clear - primary insulation (the brown, blue, green and yellow cable covers) must not be visible (either through damage to the secondary insulation or through the cable pulling out of the appliance or plug). Flex damage and cable joins are not permitted.

Contact your local Trading Standards Office; they often provide free information. In addition, a good relationship with them could be mutually useful.

Plugs and Sockets etc. (Safety) Regulations 1994

These regulations define the standards of plugs, sockets adapters and extensions for rented properties.

This is also part of the Consumer Protection Act 1987 - so again the 'supply in the course of a business' definition applies - it is entirely domestically focused.

Part 1 specifies the design safety standards for plugs, sockets and adaptors. This is really the problem of the manufacturer.

Part 2 affects rental agents and landlords because it deals with the supply of equipment to end users. All appliances are required to have pre-fitted plugs which are undamaged, with insulated sleeves, with the correct fuse and a working cord grip at the time of supply.

This places an obligation on you, every time you change tenants, to check the plugs and make sure that all the fuses are correct. Since it would be time consuming to have to unscrew each plug to check the fuse, insist that the electrician, when changing a plug, uses one with a fuse visible or accessible from the outside. This style of plug allows you to check the fuse without having to dismantle the plug. Fuses are colour coded and so if you can see the fuse from outside the plug it is much quicker to check. You are not liable if a tenant changes a fuse during his stay, but it must be correct before you re-let.

To ensure you can show due diligence, it is recommended that the inventory includes details of the fuse rating of each appliance. This could be established from the manufacturer’s information or provided by an electrician. This will greatly help the inventory check since recorded next to each appliance will be the fuse rating it should have. It also enables you to gather evidence (by ticking the fuse rating on the “checked” copy of the inventory) that this check has been done. If there is an accident or fire, and the fuse is found to be too highly rated, then being able to show it was checked before move in could be invaluable.

Another requirement of the regulations is the use of plugs with insulated sleeves on live and neutral pins. With these the metal pins are already withdrawn from live supply before they are far enough out to be touched with a finger. It is now a legal requirement to fit this type of plug to every appliance in a rented property. As soon as you issue a new supply (i.e. move in a new tenant) it must be compliant with these regulations, and if your tenants moved in since 1 February 1995 it probably should already have been changed. We would suggest all properties are checked at every re-letting and a programme of checks is introduced on those currently let (perhaps checking during quarterly visits or something similar).

Plugs must not be damaged, i.e. showing browning, burning or cracking.

Since it is part of the Consumer Protection Act 1987 these checks apply to each new supply.

Heating Appliance (Fire Guards) Regulations 1991

The fire guard regulations state that any electric, oil or gas fire should be supplied with a safety cover. There are some exceptions such as some wall and ceiling mounted bathroom heaters.

Fire Guard grill sizes:

Electric heaters with open metal elements (looks like a coil of wire), 126mm X 12mm

Electric heaters with silica covered elements (looks like a frosted glass tube), 53mm X 20mm

Gas and oil heaters 150mm X 35mm (but a max 154 mm diagonal) Also BS 1945.

A template or tape measure is useful for staff meeting new landlords and for checking existing properties.

These are maximum sizes permitted although there are some exceptions, for example at the corner of a fireguard. If in doubt seek the advice of your local Trading Standards office.

“Flame effect” gas fires are also exempt from these requirements if they are built into a fire place. However, failure to provide some form of guard to any fire could lead to a liability under General Product Safety Regulations. Likewise, failure to provide a fire guard for an open fire may not be an offence under these regulations, which only deal with gas, oil and electric fires. However, it could be pursued under General Product Safety Regulations.

It should be noted that these fire guards will not prevent the touching of the element or poking things into the fire. They are really designed to reduce the danger of things “falling” into the fire and this is why flame effect fires are exempt since they are recessed into the wall.

Gas Cooking Appliances (Safety) Regulations 1989

Requires all new and second-hand cookers in rented property to be safe. This has been, to a large extent, superseded by the Gas Safety (Installation and Use) Regulations 1998. However, it remains as law since it applies to the provision of cookers for private residences by businesses.

Bunk Bed (Entrapment Hazards) (Safety) Regulations 1987

Defines the maximum sizes permissible for gaps on raised sleeping surfaces (over 800 mm). Therefore, in spite of the name it is not just dealing with bunk beds; cabin beds etc are also covered. Although the name is ‘Bunk bed’ this applies to cabin beds and any sleeping surface over 800 mm above the floor.

The following dimensions are specified.

Baby Equipment

The general advice of many Trading Standards officers is that it is wiser not to provide baby equipment. Any accident is likely to be very emotive and high profile. Landlords should, however, be aware that many items of baby equipment have BS standards set for them. It may well not be acceptable, therefore, to provide the landlord’s cot (used by their now grown up children) to the tenant. This is because the current standard may have moved on by now and the “supply” of the older specification items has been banned.

General Product Safety

The catch-all for non-specific items - virtually anything you supply in the course of a business must be safe. Oil fired boilers, solid fuel fires and boilers would qualify for prosecution under these regulations if they were supplied in a dangerous condition.

Think carefully about providing furniture that contains glass, because most is dangerously thin. Trading Standards often recommends against supplying any furniture containing glass.

Keep all information that is supplied with any appliance when you buy it, because if it concerns the safe use of that appliance, remember the fridge example above, the tenant should be issued with a copy of it.

Any equipment for babies, i.e. high chairs and cots, has very specific standards and should be of a modern design and standard. There is a wide variety of BS standards applying to various equipment. Trading Standards should be able to supply an up to date list.

General product safety defines general safety principles with which all goods supplied in the course of a business must comply. Almost anything supplied in the course of a business could come under these regulations if no other. Trading Standards is responsible for its enforcement and it would be worth discussing local policies with your local Trading Standards office. For example, an item of furniture with broken/cracked glass could bring prosecution under these regulations. Open fires without fire guards or items with inadequate glazing could both be targeted under this legislation. (Normally glass has to comply with the current standards when fitted. It is not then required to be upgraded if the standard changes, unless the glass has to be replaced. However, glass known to be thin and a hazard, for example in doors, could result in action under General Product Safety Regulations).

Generally speaking all appliances which were purchased with any instructions should have those instructions for safe operation passed on to the tenants. Since this can be a problem, try photocopying the instructions and putting them in a “Property Information” ring binder; they will disappear less often and be replaceable more easily. If a manufacturer thought it necessary to supply instructions on the safe operation of an appliance, you are accepting a serious liability to decide these instructions are not necessary. See the case of Lyttons under the electrical safety regulations.

The Gas Safety (Installation and Use) Regulations 1998

These regulations are framed under the Health and Safety at Work Act 1974. This differentiates them from most of those above in that a landlord letting his own home for a temporary absence would have to comply. It also makes it the responsibility of the Health and Safety Executive to enforce (as opposed to the Trading Standards Officers for the Consumer Protection Act 1987).

In the event of a serious case, which can be referred to the Crown Court, there are unlimited fines available. Convictions for manslaughter have been achieved and, in some cases, prosecutions have resulted in custodial sentences for those found guilty.

The basic requirements are for all appliances to be checked annually, including the flues, by an approved registered engineer. A record of the checks, containing prescribed information, must be supplied to the tenant within 28 days of the check. New tenants are required to have a copy of the record of inspection before they move in.

There have been a number of recent problems identified of which landlords should be aware. Firstly, a heating engineer, claiming to be registered, has been prosecuted for claiming this falsely. Landlords should take all reasonable steps to ensure that engineers are registered and current in their certification. This could be done by seeing the certificate and checking with Gas Safe Register. Also checks have shown that up to a third of properties could have faults not noted in the current inspections. Make sure your contractor is diligent and competent. Remember you may have some liability for the standard of their work if you arrange them, therefore check they are registered.

An engineer’s registration can be checked by phoning Gas Safe Register on 0800 408 5500, Website www.GasSafeRegister.co.uk. There is talk of further modification to separate the training and testing of engineers.

In addition to the actual regulations the Health and Safety Commission has produced an “Approved Code of Practice and Guidance”. It can be downloaded from: http://www.hse.gov.uk/pUbns/priced/l56.pdf and is called Safety in the Installation and Use of Gas Systems and Appliances. It contains some interesting information.

One particularly concerning part used to be paragraph 226 which implies that landlords should have the system checked after every tenancy. However, it is interesting to note that in the new version this wording appears to have been removed. The old wording was:

226. When tenants vacate premises, landlords need to ensure that gas fittings/appliances are safe before re-letting. Tenants may have removed appliances unsafely (e.g. leaving open-ended pipes, having shut off the emergency control valve), or left their appliances in place. Appropriate checks should be carried out and any unsafe equipment rectified or removed before a new tenancy begins - see paragraph 216-218.It is recommended that installation pipework be inspected and tested for soundness before the property is re-let.

This caused some problems, particularly for holiday lets where arguably the landlord should get the system checked every week! The HSE did confirm that it did not consider it necessary for a holiday let and said the “appropriate action” should be taken.

It may help agents if on check out they question the tenants about disconnections (even getting a signature to confirm nothing has changed) and a note is made of the position of the gas shutoff valve (since there would normally be no reason to turn it off).

Defective Premises Act 1972

This Act affects everyone from the architect and builder 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”.

Section 4 imposes a duty of care 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 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: - when the tenancy commences, when the tenancy agreement is entered into or the time when possession is taken of the premises).

It should be noted that liability under this act is not just for the tenant but to “all persons who might reasonably be expected to be affected by defects”. This could, therefore, include friends and visitors, postmen etc.

This is one of the reasons landlords are advised to have adequate third party liability insurance, particularly since the size of a claim for death or a serious injury could be substantial.

Before the gas safety regulations were introduced this legislation was used to obtain judgements for faulty gas appliances. (Sykes v Harry being one such case). It could, therefore, obviously be used in the event of problems with such things as oil fired boilers.

Property under an “approved scheme” (such as NHBC warranty) can be excluded from this act.

Occupiers Liability Act 1957 and 1984

If the landlord retains responsibility for any part of the property these acts may apply. The obligation is to ensure that those parts for which they retain responsibility are reasonably safe. It is very similar to the above, and like the above, the liability is broad enough to include tenants, their friends and visitors, tradesmen and even the postman. Responsibility cannot be removed by disclaiming responsibility in the contract.

Where property owners let under licences the property owner remains the Occupier for the purposes of this act.

If the landlord lets the property in its entirety with only statutory rights of entry (section 11 repairs for example) then the tenant could become the occupier. However, if the landlord retains the right to enter the property, to check the state and condition or other similar clauses in the agreement, then again liability rests with the landlord.

The Landlord and Tenant Act 1985

Sections 11 to 17 of the above act (as amended by section 116 of the Housing Act 1988) create a statutory repairing obligation on almost all landlords (see exception below). The fact that it is statutory means that it applies whether or not it is written into the tenancy agreement and secondly the landlord cannot sidestep the obligations by a clause in the agreement, without County Court approval (under section 12). This repairing requirement only applies where the lease is for less than seven years. See here for sections 11 to 17 and here for the section 116 additions.

These sections define the main statutory repairing obligations of a landlord. Under it the landlord is responsible for repairs to the following areas of the property:

(a)   to keep in repair the structure and exterior of the dwelling-house (including drains, gutters and external pipes);

(b)   to keep in repair and proper working order the installations in the dwelling-house for the supply of water, gas and electricity and for sanitation (including basins, sinks, baths and sanitary conveniences, but not other fixtures, fitting and appliances for making use of the supply of water, gas or electricity); and

(c)   to keep in repair and proper working order the installations in the dwelling-house for space heating and heating water.

Notice that in (b) it specifically excludes most appliances from statutory repairing obligations. It is therefore up to the landlord and tenant to contract as to who is responsible to repair what.

The repairing obligation only starts once notified of the need for repair. The notification could be verbal or written. The landlord must then effect the repair within a reasonable timescale. Tenants who expect the boiler fixed “within the next 20 minutes” are simply not being reasonable. If the job is large, for example roof replacement, then it would be reasonable to get quotes for the repair. Emergency repairs, e.g. leaks coming through the ceiling, should receive immediate attention. In Lloyd v Rees (Pontypridd Count Court 1996 as mentioned in Letting Update Journal April 1999, page 15) the court held that two months was reasonable delay in arranging re-plastering following damage from damp penetration. Note this was only a county court case and therefore not a binding precedent on other county courts.

The requirements of section 11 do not cover situations where the tenant is liable due to his duty to live in a tenant like manner, the property is destroyed or damaged by fire, tempest, flood or other inevitable accident. Nor does it require the landlord to maintain or repair anything the tenant is entitled to remove from the property. The problem must be a physical defect not simply an inefficiency or inadequacy (for example a boiler which does not provide enough heat to keep the house up to the temperature desired by the tenant, but is functionally OK). Improvements would be excluded. However, be aware that the Environmental Protection Act 1990 and HHSRS (above) can require improvements to the property where its state is prejudicial to health (e.g. damp). Repairs only have to be to a standard in keeping with the age, character, location and life expectancy of the building.

Case law has been held to exclude outside paths (King v South Northant DC and Edwards v Kumarasamy) from the section 11 repairing obligations. This would apply also to fences, gates etc.

Failure on behalf of a landlord to fulfil the obligations of section 11 would enable the tenant to take court action. This could result in damages being paid to the tenant and/or the court ordering, under section 17, that the repairs are completed. Tenants may arrange repairs and deduct the cost from the rent; courts are unlikely to assist with a possession claim under such conditions.

Landlords should be aware that counterclaims for disrepair are amongst the most common counterclaims made when possession is sought for rent arrears. Cases have been brought to our attention where landlords have come away from court having to pay the defaulting tenant substantial sums of money (in four figures) were such a counterclaim is made. Agents need to ensure that landlords carry out repairs (even if they are not getting the rent) to avoid such a trap. Part of the Woolf reforms was to lower the threshold at which disrepair claims go from small claims track to fast track. If the only claim is for damages then the £10,000 threshold applies for switching from small claims to fast track. However, if the damages claim is over £1,000, then this will normally be allocated to fast track. The problem is that on fast track a tenant may receive legal aid. This can mean there is little if any disincentive to make a claim and can leave a landlord with large legal costs to pay.

Landlords should be careful in the wording of agreements since poor drafting can lead to an increased repairing liability. Such was the case in Welsh v Greenwich LBC CA 27/6/2000. Here the agreement said the landlord would keep the property in “good condition”. The property suffered problems of damp mould on the walls made worse by no central heating and a lack of insulation in the walls. The landlord argued that this was not “disrepair” since it had never been any better. The Court of Appeal found in favour of the tenant on the basis that the phrase “good condition” went beyond repairing obligations. It is a clear example of how you can extend the responsibility of the landlord by careless wording of the agreement. In this case the landlord was obliged to improve the flat to fulfil the “good condition” clause.

It is a common law implied term that furnished premises are let fit for human habitation (Case of Smith v Marrable 1843). Section 604 of the Housing Act 1985 defines fitness for human habitation. Section 8 of the Landlord and Tenant Act 1985 requires property to be fit for human habitation when let, and for it to be kept, by the landlord, fit for human habitation thereafter. The problem here is that it is limited in the Act to rents of less than £80 in London and £52 elsewhere! This makes it effectively useless. However, at the time of writing there is a private members bill, supported by government that will do away with those thresholds meaning all rented properties will have to be let, and kept, fit for human habitation. They are also planning to include HHSRS hazards as a reason for a property not being fit for human habitation.

In all “section 11 repairing leases” a right of entry at reasonable times of the day is provided for viewing the property condition and state of repair following 24 hours’ written notice (section 11(6)). Section 16 of the Housing Act 1988 also creates an explicit right of entry and “reasonable facilities” (e.g. electricity or water) for all landlord repairing obligations (statutory or contractual) in assured tenancies (reasonable notice would again be required).

Amazingly, a tenant is still technically obliged to pay rent for a property even if destroyed by fire. It is to overcome this problem that tenancy agreements specifically release the tenant from this obligation if the property is not habitable. Be careful of the wording of these clauses. Many limit it to instances of fire but, as many have found in extreme weather, flooding and other similar damage can cause the same problem. It is not implied that tenants have to leave while repairs are carried out, unless the repairs cannot be carried out with them still in situ.

The landlord may well be liable to tenants for substantial damages if repairs get out of hand. In one case in the county court the tenant was awarded over £31,000 damages when a fire was blamed on a faulty electrical circuit. Damages could be awarded for physical damage (to tenant’s possessions), inconvenience and loss of amenity. The basic guide for damages would be to put the tenant back to the same position as if the landlord had fulfilled their obligations. It could, in some cases, include alternative accommodation, although the landlord is not generally responsible for providing alternative accommodation if a property is uninhabitable.

There is also a pre-action protocol being introduced in respect of disrepair. This specifies what actions should have been carried out in a dispute over disrepair before either party takes court action. Again, landlords should be aware of this and be wary if they receive a letter stating it is a pre-action protocol letter.

Tenant repairs

In 1954 Lord Denning defined the repairing obligations of a tenant as ‘The tenant must take proper care of the premises. 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 not, of course, damage the house wilfully or negligently.... 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, the tenant is not liable to repair it’ (Warren v Keen [1954] 2 All ER 1118 at p 1121). This is implied in all tenancies.

Outside of these clear-cut areas much will depend upon what the contract (tenancy agreement) says. However, it is important to be fair here since unreasonable demands could give the tenant cause to claim voiding of this part of the contract through the courts.

Interestingly, including the right to enter and inspect brings the landlord under the Defective Premises Act 1972 unless the right is limited to the right in respect of the section 11 repairs. Landlords will generally want to have the wider right of entry to inspect the state and condition of the property.

As a good general guide if something is provided by the landlord then, unless there is a clear indication to the contrary in the contract, it should be assumed that the landlord is responsible for maintaining it.

Section 18 of the Landlord and Tenant Act 1927 makes it only possible to claim damages from the tenant for actual loss suffered. This would mean that a landlord could not claim damages to decor on a property about to be gutted and refurbished.

Repairing Obligations Questions

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