We were instructed in November 2020 by Mr and Mrs Z from South London who had been experiencing substantial and ongoing disrepair since they moved into their leasehold property in the spring of 2012.. Having spent nearly eight years trying and failing to get the freeholder to repair exterior damage to the property which was causing internal disrepair they contacted us and we took on their case under a ‘No Win No Fee’ agreement.
Soon after moving into their ground floor flat our clients became aware of excess humidity in the bathroom which was causing condensation to run down the walls resulting in puddles on the floor. Our clients reported this to the freeholder who sent one of their contractors to inspect. Our clients were informed by the contractor that this is only condensation and there is nothing that can be done.
In the early winter of the same year our clients noticed that black mould was beginning to form on the walls of the bathroom. Our clients reported this again to the freeholder who informed our clients that this would be the clients responsibility. The freeholder refused to take any action to inspect the property.
By the middle of 2013 the disrepair was getting much worse. The excess moisture was affecting the metal fixtures of the bathroom which began to rust and the exterior wall of the bathroom was wet to the touch after rainfall, the black mould was also spreading and becoming thicker than it had been the previous year. Furthermore, the mould and damp started to appear in all of the other rooms of the property causing extensive damage to carpets, laminate flooring, walls and soft furnishings. Again, this was reported to the freeholder and an inspection took place, this time it was identified that part of the problem was likely to be that the soil outside the property was too high and situated far above the damp proof course causing excess moisture inside. However, despite the initial investigation the freeholder made no attempt to rectify the issue.
Towards the end of 2013, our clients noticed water leaking from the light fixture in their master bedroom. This was reported to the freeholder and the leak was stopped and ceiling painted. However, mildew started to grow on the ceiling of the master bedroom suggesting that the damage caused by the leak had not been properly rectified and instead just cosmetically covered up.
In the spring of 2014, our clients sent the freeholder a letter setting out all the complaints and repair requests that they had previously made to them over the two years of living at the property. The freeholder responded to this letter by telling our clients to use a better quality of paint and to paint over the areas where the black mould is showing through.
The disrepair carried on for a further six years with conditions gradually getting worse each year. Our clients were fighting a losing battle with the freeholder and as well as living in an unsafe environment they were spending hundreds each year having to replace flooring and soft furnishings that become saturated with damp and mould, this was having a detrimental effect on both our clients physical and mental health.
The freeholder had made absolutely no attempt to repair the damage and/or adequately investigate the root cause of the disrepair over the 8 years the clients had lived at the property, therefore we gathered all evidence of correspondence between our clients and the freeholder plus copies of the original lease and instructed a reputable surveyor to assess the property who reported that the level of disrepair was indeed substantial.
We also instructed a structural engineer who cited negligent building construction including but not limited to cold bridges, cracks and access holes in the exterior walls, soil above the damp proof course and ineffectual guttering and wastewater management all of which contributed to the very high levels of humidity, condensation and black mould. The experts concluded that the extent of the black mould and absence of proper ventilation was an urgent health hazard.
We sent a detailed letter of claim to the freeholder setting out that they were in breach of clauses of the lease and/or breach of their statutory and common law duties. The Freeholder denied liability stating that they were only responsible for the exterior of the property and not responsible for the clients’ interior disrepair which may have been true had the interior disrepair not been caused by exterior negligence.
The freeholder continued to deny liability even after appointing their own expert surveyor to assess the property, their surveyors report agreed on all counts with our experts report therefore we issued court proceedings. The freeholder at this point accepted that they need to take this seriously and entered negotiations with us. After numerous below par offers from the freeholder our client accepted a part 36 offer of £10,000 in damages with all repairs to be completed within 120 days plus all their legal costs recovered by the other side.
Our client’s had up until the point of instruction lived in a extreme state of disrepair for a total 8 years and whilst the most important thing for our client’s physical and mental health was getting their home repaired and them back to a good standard of living, the compensation payout that they received for all the distress and health implications caused came a close second.
For more information on how compensation is generally calculated, read our article on this subject: https://www.mjvlaw.co.uk/legal-news/housing-disrepair-compensation/
by Jane Willacey
We were instructed at the end of April 2021 by Mrs O from South London who had been experiencing ongoing leaks, damp and mould within the leasehold flat she had shared with her husband and three children since 2019. We took her case on under a ’No Win No Fee’ agreement.
Our client and her family moved into their first floor flat in 2012 and in 2014 they purchased the leasehold. In early 2019 wet patches and mould started to appear on the walls and window frames in both the kitchen and the living room and soon after it quickly spread to the flooring and throughout other rooms. Our client checked with their downstairs neighbour who confirmed she was experiencing the same issues and together they looked over the exterior walls finding that two walls on one side of the building were very wet and covered with algae.
Our client tried multiple times to contact the council who owned the freehold of the building but she didn’t get a reply. Our client continuously called and emailed the freeholder over the next few months to no avail.
By the summer of 2019 the disrepair was getting progressively worse, our client was spending both time and money washing down and repainting walls, cleaning carpets and replacing soft furnishings that had become saturated with damp and mould. It was at this point that the freeholder sent a contractor to the property who cosmetically covered up the damage by painting over the offending mould on the walls and window frames however no repairs and no investigations into the root cause of the disrepair took place.
At the start of 2020 a particularly long spell of heavy rain caused a major leak in the bedroom, water had poured through the light fitting resulting in the electrics shorting out. Our client was living with no electricity supply to this room but the resulting emails and calls to the freeholder again were ignored.
By the early spring of 2021 our client and her family had lived in a state of disrepair for over two years which had really taken its toll and had a detrimental impact on the family. It was at this point that our client felt that they could no longer live in their property whilst it was in such a severe state of disrepair, their physical and mental health had been severely affected and to provide a better home for herself, her husband and their children they took the decision to rent a property paying a reduced rent through their church until the disrepair was rectified. Our client was now effectively paying for two properties putting a heavy strain on their financial situation.
The freeholder made no attempt over two years to adequately investigate or attempt to repair the external damage which was the root cause of the internal disrepair therefore once we took instruction we gathered evidence of the correspondence between our clients and the freeholder plus copies of the original lease and appointed an expert surveyor to assess the property and report his findings.
The surveyor reported that some of the main issues were an active leak from a soil pipe causing penetrating damp and mould in the kitchen and bathroom and an active leak coming from the above property, which resulted in numerous problems such as black mould, damp, moss growth, rotten panelling, spalled plaster, lifted flooring and warped doors and frames.
We sent a detailed letter of claim to the freeholder setting out that they were in breach of express and implied terms of tenancy and/or breach of their statutory and common law duties by not adhering to the clauses outlined in the leasehold regarding the freeholders responsibility for the maintenance and repairs of all common area water and waste pipes.
The other party’s solicitor acknowledged our letter of claim but didn’t contact us with a reply, however after chasing them for some weeks they did eventually instruct their own nominated surveyor to assess the property. The freeholder’s expert surveyors report agreed with ours therefore we made a settlement offer.
Our offer was rejected and liability was denied with the freeholder stating that our client “should claim on their insurance”. We argued that even if our client was able to claim on her insurance for damages the leaks would first need to be stopped and this was the freeholder’s obligation under the express and implied terms of tenancy.
All of our subsequent offers were rejected and the council continued to deny liability therefore we issued court proceedings. As the date of the court case grew closer the freeholders’ solicitors contacted us to let us know that they would now welcome an offer of settlement, we made an offer based on the monthly rent valuation of their property, the amount of time that had passed, the effect on the families physical and mental health and their excess outgoings for rent on their temporary property. Our offer was again rejected by the freeholder with their counteroffer being well below par and in turn rejected by us.
Fast forward to just two days before the trial date, the freeholders solicitors came back to us with a part 36 offer to settle out of court of £25,600 to cover damages and repairs with all their legal fees recovered from the other side. After discussing this offer with our client she accepted.
Our client’s had up until the point of instruction lived in a state of disrepair for over two years and whilst getting their home repaired and returned to a liveable state was of primary importance the compensation that they received helped immensely with getting their lives back on track.
For more information on how compensation is generally calculated, read our article on this subject: https://www.mjvlaw.co.uk/legal-news/housing-disrepair-compensation/
by Jane Willacey
We were instructed by Mr B from The Midlands in the summer of 2021, he had beenexperiencing substantial disrepair issues within his council property since 2017. Our client had tried and failed on numerous occasions to get the council to sufficiently repair his home therefore he contacted us and we took on his case under a ‘No Win No Fee’ agreement to claim compensation and get his home repaired.
Rotten wooden window frames and blown seals were causing draughts, leaks, condensation, and black mould. Numerous calls and emails from our client to the council had resulted in the window frames being glossed over rather than being adequately repaired or replaced and whilst this caused our client great distress and inconvenience this was not the worst of the disrepair. A leak above the living room had been slowly making itself known and after numerous calls and emails to the council no less than three contractors attended the property for it to be reported on each occasion that they were “unable to find the cause of the leak” and “it’s just a slow drip” but of course a slow drip over time will eventually lead to a much bigger problem in the future and it eventually resulted in the living room ceiling collapsing.
The councils attempts to fix the clients property were few and far between and less than satisfactory which left our client with the stress and physical health implications of living in a constant state of disrepair.
Evidence of numerous phone calls, emails and letters to the council were supplied by the client along with a report from a reputable surveyor that confirmed that the level of disrepair within our client’s property was substantial.
We sent a detailed letter of claim to the council setting out that they were in breach of express and implied terms of tenancy and/or breach of their statutory and common law duties however they refused to accept liability or agree to do the repairs within a satisfactory time frame therefore we issued court proceedings.
The court ruled that the council was in breach of the terms of tenancy and the client was awarded compensation of £8,000 with all legal costs recovered from the other side. The living room ceiling was fixed and finished to a high standard with new windows fitted throughout within just a few weeks.
Our client had up until the point of instruction lived in a state of disrepair for a total of 1624 days and whilst the most important thing for the client’s health and well being was getting his home repaired the compensation for all the distress caused came a close second.
For more information on how compensation is generally calculated, read our article on this subject: https://www.mjvlaw.co.uk/legal-news/housing-disrepair-compensation/
by Jane Willacey
We were instructed at the start of May 2020 by Mrs K from Leicester who had been experiencing ongoing mould and damp within her property since 2018. We took her case on under a ’No Win No Fee’ agreement.
Our client moved into her property in the late winter of 2017, within just a few weeks she noticed mould appearing in both the bathroom and second bedroom to the rear of the property. Our client contacted the council via both phone and email but received no response.
By the winter of 2019 the mould was getting a lot worse and carpets and curtains were saturated, all attempts by our client to clean and repaint the walls were in vain.
The council made no response to our client’s complaints and there was no attempt to investigate the source of the disrepair.
Once we were instructed, we sent a detailed letter of claim to the council setting out that they were in breach of express and implied terms of tenancy and/or breach of their statutory and common law duties by not adhering to the clauses outlined in the tenancy regarding their responsibility for the maintenance and repairs of the structural integrity of the building and we instructed an expert surveyor.
Our surveyor reported that some of the main issues were but not limited to severely blocked gutters which were cracked in numerous places along the back of the property which allowed water to penetrate the rear wall.
The council’s solicitor acknowledged our letter of claim and many discussions they made a part 36 offer to settle out of court. The offer was a little lower than anticipated therefore we made a counteroffer of £3,550, repairs to be fully completed within 60 days and all costs recovered from the other side. The council agreed to settle.
Our client’s had up until the point of instruction lived in a state of disrepair for over 2 years and whilst getting their home returned to the state it should have been in was the priority the compensation that our client received for came a close second.
For more information on how compensation is generally calculated, read our article on this subject: https://www.mjvlaw.co.uk/legal-news/housing-disrepair-compensation/
by Jane Willacey
Housing disrepair claimants will have a new weapon available to hem in March 2019. It goes without saying that houses let for people to live in should be fit for human habitation, but for many years, there has been no meaningful law requiring this.
Provision was included within the Landlord and Tenant Act 1985 (LTA 1985) at Section 8, which implied a term into tenancy agreements that, on the grant of a new tenancy, the property would be fit for human habitation and that it would be kept as such throughout.
The problem with Section 8 is that it only applies to tenancies where the rent is £80 in London or £52 elsewhere and there has been no inflationary adjustment of these limits.
In March 2019, the Humans (Fitness for Habitation) Act 2018 (‘the Act’) comes into force and this has the effect of amending LTA 1985 to remove the limits and make the provisions applicable to most tenancies. The act can be found here: http://www.legislation.gov.uk/ukpga/2018/34/enacted
Once operational, the Act will require the courts to consider whether a property is in a condition of acceptable:
(i) Repair; (ii) Stability; (iii) Freedom from damp; (iv) Internal arrangement; (v) Natural lighting; (vi) Ventilation; (vii) Water supply; (viii) Drainage and sanitary conveniences; (ix) Facilities for the preparation and cooking of food; and (x) Facilities for the disposal of waste water.
A property is deemed to be unfit for human habitation, pursuant to the above requirements as found at Section 10 of the LTA 1985, if it is so far defective in one or more of these respects that it is not reasonably suitable for occupation in that condition. Tenants suffering from housing disrepair not covered by Section 11 may now have a claim that otherwise would have failed.
It is likely that the case law arising from the Act will continue in a similar fashion to that handed down under the LTA 1985. Some examples of properties that were deemed unfit for human habitation are:
(a) A small house where the only window could not be opened; (b) A house where plaster was falling from the ceiling; (c) A property where the ceiling had collapsed; and (d) A home where the waste disposal system failed causing serious damp.
There are limitations on what is covered. There is no liability for parts not let to the tenant such as communal areas and occasional incursions from vermin from outside would not fall under the provisions.
A guide to standards for Section 8, given by Atkin LJ in 1926, was:
“If the state of repair of a house is such that by ordinary use damage may naturally be caused to the occupier, either in respect of personal injury to life or limb or injury to health, then the house is not in all respects reasonably fit for human habitation.”
Despite this, the courts have taken an approach that the provisions should be limited to premises which can be made fit by the landlord at reasonable expense. This ruling in Buswell v Goodwin [1971] 1 WLR 92, CA has no basis in either Section 8 or the Act and is considered to be ripe for review by Luba, Foster and Prevatt in Repairs: tenants rights (5th edition).
Given the re-invigoration of the provisions of Section 8 by the Act, it shall be fascinating to see whether the Courts follow the decision in Buswell or take the opportunity to set a new bar for claims to ensure that landlords do not have the opportunity to rely on cost as an excuse for letting property considered unfit for human habitation.
by Jane Willacey
We were instructed by Mr B from The Midlands in the summer of 2021, he had beenexperiencing substantial disrepair issues within his council property since 2017. Our client had tried and failed on numerous occasions to get the council to sufficiently repair his home therefore he contacted us and we took on his case under a ‘No Win No Fee’ agreement to claim compensation and get his home repaired.
Rotten wooden window frames and blown seals were causing draughts, leaks, condensation, and black mould. Numerous calls and emails from our client to the council had resulted in the window frames being glossed over rather than being adequately repaired or replaced and whilst this caused our client great distress and inconvenience this was not the worst of the disrepair. A leak above the living room had been slowly making itself known and after numerous calls and emails to the council no less than three contractors attended the property for it to be reported on each occasion that they were “unable to find the cause of the leak” and “it’s just a slow drip” but of course a slow drip over time will eventually lead to a much bigger problem in the future and it eventually resulted in the living room ceiling collapsing.
The councils attempts to fix the clients property were few and far between and less than satisfactory which left our client with the stress and physical health implications of living in a constant state of disrepair.
Evidence of numerous phone calls, emails and letters to the council were supplied by the client along with a report from a reputable surveyor that confirmed that the level of disrepair within our client’s property was substantial.
We sent a detailed letter of claim to the council setting out that they were in breach of express and implied terms of tenancy and/or breach of their statutory and common law duties however they refused to accept liability or agree to do the repairs within a satisfactory time frame therefore we issued court proceedings.
The court ruled that the council was in breach of the terms of tenancy and the client was awarded compensation of £8,000 with all legal costs recovered from the other side. The living room ceiling was fixed and finished to a high standard with new windows fitted throughout within just a few weeks.
Our client had up until the point of instruction lived in a state of disrepair for a total of 1624 days and whilst the most important thing for the client’s health and well being was getting his home repaired the compensation for all the distress caused came a close second.
For more information on how compensation is generally calculated, read our article on this subject: https://www.mjvlaw.co.uk/legal-news/housing-disrepair-compensation/
by Jane Willacey
Refusing entry for repairs
There are many things that arise regularly in housing disrepair claims and landlords claiming tenants refuse entry to undertake repairs is one.
Landlords have the right to enter your property, provided they give reasonable notice to either carry out an inspection or repairs.
Breach of tenancy agreement
As landlords have the right to enter, such a refusal is a breach of a tenancy agreement. If this were to happen regularly, it could lead to eviction. Section 8 of the Housing Act 1988 allows evictions on certain, specific grounds. These are found at Schedule 2 of that Act and Ground 12 is that:
“The Tenant has breached any of the terms listed in the tenancy agreement”.
If you are a tenant of a housing association or council, it is likely that the type of tenancy you have would not enable your landlord to evict you using Section 21 of the Act and so eviction is only normally possible when the agreement is breached.
Housing disrepair claim
It is not common for us to encounter a client who has been, or has been threatened with being, evicted for failing to allow entry. Instead, the issue arises in the course of their housing disrepair claim.
A tenant must give notice of any items of disrepair.
For more information on notice requirements, read our guide to this https://www.mjvlaw.co.uk/legal-news/housing-disrepair-notice/
Once notice has been given, the tenant must allow their landlord access to undertake inspection and then undertake any repairs. While it sounds obvious that a tenant would allow entry for repairs they have reported, this is not always the case.
Often, tenants are unhappy with the work that their landlord has proposed. We often encounter landlords who misdiagnose a problem and try and solve it multiple times despite it failing to do so previously. This is common with damp. Landlords inspect and find damp. They treat the walls with damp treatment or paint and consider the problem solved. When it reappears, they return and apply the same treatment. In one case, the landlord did this five times.
It is not unreasonable for a tenant to be frustrated by such behaviour. Such landlords are clearly in breach of their repairing obligations under Section 11 of the Landlord and Tenant Act 1985. As of 20 March 2020, they are also likely to be in breach of them under the Homes (Fitness for Human Habitation) Act 2018 also.
However, to refuse access remains a breach of the tenant’s responsibilities and would provide the landlord with a defence to any claim.
What to do instead
If you have a housing disrepair issue and your landlord fails to address it correctly, contact MJV Solicitors for help.
Even when we are involved, we advise our clients to allow access and to ensure that they comply with the tenancy agreement.
If, as in the example above, your landlord has failed to properly investigate an issue and undertaken inadequate repairs, we can help. We will instruct a specialist surveyor to attend the property and prepare an expert report. It is extremely common for it to be revealed that there was a more serious, underlying problem that the landlord had chosen to ignore or missed entirely.
If a landlord continues to carry out inadequate repairs it is unlikely that these would disguise the true problem and so there is nothing to gain for a tenant by refusing entry.
False allegations
It is also common for us to act for clients who are accused of refusing entry, but deny this. The truth varies from case to case:
We have acted for clients who have been at home waiting for workmen and there has been no knock at the door. Later, they noticed that a card had been pushed through claiming that they had “missed them”. They called their landlord to explain, but nobody came a second time. This has happened far more than once;
We have acted for clients whose landlords claimed to have made appointments of which our clients had no idea so did not stay in; and
Many of our clients are vulnerable and so when workmen arrive without valid photographic ID they, quite rightly, refuse entry.
Landlords we have made claims about have all used these as excuses for trying to refuse claims. We support and help our clients and so tend to succeed with such claims.
Your claim
MJV Solicitors are based near Blackpool,but serve all of England and Wales for housing disrepair claims and have clients from the Isle of Wight, to South Wales to the North East. If you think you may have a claim, call us today on 01253 858231 or e-mail info@mjvlaw.co.uk for a free, no obligation discussion.
If we accept your claim it will be on a no win no fee basis and, in addition to the repairs we can require your landlord to undertake, we can obtain you compensation.
For more on compensation and how it is calculated, read our guide https://www.mjvlaw.co.uk/legal-news/housing-disrepair-compensation/
by Jane Willacey
We were instructed in April 2023 by Mrs D from Kidderminster who had been experiencing ongoing disrepair within her council house since the winter of 2015. We took her case on under a ’No Win No Fee’ agreement.
In December 2015 our client noticed that there was excess condensation and mould growth starting to appear in places on the walls and ceilings in the bathroom, the hall and in two of the bedrooms, the walls in certain areas were staring to crack and crumble and there was mould and damp around the front door where the seals had failed. Our client informed the council via email, telephone and the councils complaints procedure however it took over 19 months for a contractor to attend the property, the contractor painted over the mould, this had been done on three separate occasions since however the mould had always come back and the source of the disrepair had never been investigated.
We sent a detailed letter of claim to the council setting out that they were in breach of express and implied terms of tenancy and/or breach of their statutory and common law duties by not adhering to the clauses outlined in the tenancy regarding the council’s responsibility for the maintenance and repairs of the building.
The councils’ solicitors acknowledged our letter of claim and a joint inspection between both parties nominated expert surveyors was arranged. The surveyors reported that some of the main issues were but not limited to
Low level damp and mould found throughout the property which had caused damage to ceilings, plasterwork, floors and walls originating from a leak in the loft which in turn caused excess condensation to penetrate the property.
Blown door seals allowing cold and damp to penetrate resulting in high damp meter readings in the hallway.
High than average damp meter readings throughout the property
Defective guttering at the rear of the property.
We made a part 36 offer to settle without the need for court proceedings, our first offer was rejected however the other party accepted a subsequent offer of £4700.00 in damages and repairs to be completed within 30 days plus all legal costs recovered from the other side.
Although this claim was small in comparison to most of our housing disrepair cases our client had up until the point of instruction lived with low level damp and a faulty front door which had caused her much distress and frustration and whilst getting her home back to a liveable state was the priority the compensation that our client received came a close second.
For more information on how compensation is generally calculated, read our article on this subject: https://www.mjvlaw.co.uk/legal-news/housing-disrepair-compensation/
by Jane Willacey
We were instructed in November 2021 by Mr U from North London who had been experiencing ongoing disrepair within his council flat since 2019. We took his case on under a ’No Win No Fee’ agreement.
In December 2019 our client noticed several small intermittent leaks coming from the ceiling in both the hallway and bathroom. This was reported to the council who did not provide our client with a response. Our client continued to report the disrepair via email and telephone over the next few years to no avail.
As soon as we took instruction, we sent a detailed letter of claim to the council setting out that they were in breach of express and implied terms of tenancy and/or breach of their statutory and common law duties by not adhering to the clauses outlined in the tenancy regarding the council’s responsibility for the maintenance and repairs of the building and we instructed an expert surveyor to assess the disrepair.
The surveyor reported that some of the main issues were but not limited to numerous small leaks originating from the flat above causing black mould and high damp meter readings in the two affected rooms, damage to plasterwork on both the walls and ceilings and rotten floorboards and door frames.
The councils’ solicitors after viewing our surveyors report and our client’s evidence of numerous reports to the council put forth a part 36 offer to settle out of court, this offer was lower than our valuation of the claim therefore, we rejected their offer and issued court proceedings.
A few days before the trial date the councils’ solicitors contacted us again with a higher offer of £1650.00 to include all repairs to be completed within 60days and all costs recovered from the other side. Our client accepted their offer.
Up until the point of instruction our client had lived with small leaks damp and mould for two years which had caused him much distress and frustration which in turn had a negative impact on his physical health and mental health and whilst getting his home back to a liveable state was the priority the compensation that our client received came a close second.
For more information on how compensation is generally calculated, read our article on this subject: https://www.mjvlaw.co.uk/legal-news/housing-disrepair-compensation/
by Jane Willacey
Any landlord of a property that they let to tenants is under a duty to ensure that the property is in a suitable state of repair.
If you are living in a rented property that has not been adequately maintained by your landlord, it could be that you have a claim for housing disrepair. However, it is not as simple as to say that because a property is in poor condition you will have a claim for compensation.
Section 11 of the Landlord and Tenant Act 1985 provides for certain circumstances when a landlord has a duty to repair a property and, when they do not do so, damages (commonly known as compensation) can be recovered for the tenant.
Section 11 of the Landlord and Tenant Act 1985
Section 11 of the Landlord and Tenant Act 1985 (LTA85) sets out a Landlord’s obligations to repair a property that is let out to a tenant by way of a short lease.
It states that there is an implied term in any relevant short lease that a landlord must keep a property in an adequate state of repair in terms of the structure and exterior including any and all drains, gutters and external pipes.
The LTA85 further requires them to keep all of the “installations” in the property that supply water, gas, electricity and sanitation items (such as the toilets) in a good, working condition. Specific reference is given to this applying to basins, sinks, baths and “sanitary conveniences”, but not other fixtures and fittings that use gas, water or electricity. As such, it is not a requirement for a landlord to ensure that a washing machine, dishwasher or cooker are working.
Finally, part C of Section 11 sets out the requirement for a landlord to ensure that they keep the heating installations for both space heating and heating water in a state of repair and in proper working order.
The acceptable quality of the repair work undertaken by the landlord will depend upon various things, but consideration will be given to the age of the property, its character and the prospective life of the property. It would also include consideration of the local area. So, a property in a high rise block of flats in a city centre would not require the same standard of work as a large, detached residence in a rural village.
The obligation to repair is binding on landlords even if they include provisions in the lease to try and avoid it.
Section 11, however, also makes clear what is expected of the tenant. The landlord’s obligations to keep the gas, water, electricity and sewage installations in a state of repair does not mean that they have to repair any damage done to them by a tenant. If these items do not work as a consequence of the tenant misusing or deliberately or recklessly damaging them, the landlord has no duty to repair that damage.
It also does not extend to imposing a requirement on the landlord to rebuild or reinstate the property in the event that it is destroyed or damaged by fire, flood or other such inevitable accident or “Act of God”.
A tenant is also required to ensure that they keep in a good state of repair and well maintained any items that they are entitled to remove from the rented property. For example, if a property was unfurnished and a tenant installed their own washing machine, that tenant would have to ensure that it was kept in a good working order. If that washing machine then leaked and caused damage to the property it would be the responsibility of the tenant and not the landlord to pay for the repairs.
Short Leases
The repairing obligations under Section 11 of the LTA85 apply to short term leases.
A short-term lease is defined by 13(1) as any lease granted on or after 24 October 1961 for a dwelling house with a term of fewer than seven years.
If a lease has a term of fewer than seven years, but contains an option to renew, which, if exercised, would extent the lease beyond seven years then it is not considered a short term lease and Section 11 would not apply.
The vast majority of rented properties in England and Wales are rented out under the terms of assured shorthold tenancy agreements of six or twelve months. Such agreements would be include the covenants implied by Section 11 and so most tenants of rented properties in England and Wales have the protection that it affords.
Reporting the Issue
It is, of course, a requirement for the tenant to make the landlord aware of the problem.
It is true that, under Section 11 LTA85, any short lease to which the landlord’s repairing obligation applies also contains an implied term that allows the landlord to enter the property for the purposes of viewing the condition and state of repair, provided always that 24 hours’ notice is given, and the inspection takes place at a reasonable time of day. However, if a landlord does not exercise this right and inspect the property, it is essential for the tenant to make them aware of any problems.
In the case of Samuel Edwards v Balasas Kumarasamy [2015] EWCA Civ 20, it was stated that “the general rule is that a covenant to keep premises in repair obliges the covenantor to keep them in repair at all times, so that there is a breach of the obligation immediately after a defect occurs. There is an exception where the obligation is the landlord’s and the defect occurs in the demised premises themselves, in which case he is in breach of his obligation only when he has information about the existence of the defect such as would put a reasonable landlord on inquiry as to whether the works of repair are needed and he has failed to carry out the necessary works with reasonable expedition thereafter”.
So, if there is an issue with a property, the duty to repair it falls on a landlord as soon as they are notified of it by a tenant.
Any landlord who wishes to keep to his obligations would arrange an inspection within a reasonable time, normally a few days, and arrange the works to be carried out as soon as practicably possible thereafter.
If the issue is one that manifests itself inside the property and the landlord carries out an inspection, the landlord is considered to have learned of it at the inspection.
If, however, he is notified of it by the tenant, he is considered to have learned of it when the tenant told him.
Any tenant should ensure that they notify the landlord of any issues and be sure to do so in writing. Leaving a paper trail and evidence of the notification of the disrepair could prove to be crucial evidence in the event that a claim arises.
If you are living in a rented property and have an issue for which the landlord is required to undertake a repair and you have not yet informed the, you should do so immediately and in writing. If you have already informed the landlord, you should keep a written record of how and when you notified them of the issue and each time you have had to chase them to act.
The burden of proof is on a tenant to prove that the landlord had notice of a defect and so giving that notice by written means ensures that proving notice was given will be much easier.
While it is possible for a landlord to receive notice by visiting the property at an inspection, it is not enough for them to have visited alone. The defect must have been visible and clear to see from such an inspection for the landlord or his agent to be considered to have been informed of it. The defect must have been visible and obvious at the time.
Where a defect is visible from outside of the property, there is no requirement for a tenant to give the landlord notice of it, but it is always best practice to do so.
The Requirement to Repair
Section 11 sets out the requirement for a landlord to keep certain services and parts of a property in a state of repair. The LTA85 itself does not define what “in repair” means and so this has been left to the courts to determine using common law.
In the matter of Uddin & Anor v Islington London Borough Council (2015), a tenant resided in a property that suffered from rising damp. The Council had previously inserted a damp proof course into the property and so they tried to argue that they had taken the steps that were required to keep the property in a state of repair. The court disagreed and found in favour of the Claimants.
The damp was caused by an inherent defect in the property and the Council had taken steps to try and solve the problem, but as these efforts failed, the court found them in breach of their repairing obligation under Section 11 LTA85. The Claimants were awarded damages of £14,680.
Ackner LJ, speaking in the judgment of the Court of Appeal stated, “I have no hesitation in rejecting the submission that the appellants’ (the Council’s) obligation was repetitively to carry out futile work instead of doing the job properly once and for all”.
So a Landlord has a duty to ensure that a property let to a tenant is in a state of repair even if it was not when it was first let to the tenant.
It is a requirement of Section 11 of the LTA85 that some part of the structure or exterior of the property is in a state of disrepair. So, the covenants only apply when there is physical damage to either the structure or exterior and they do not apply if the damage has been caused by the tenant or their failure to act.
If a property has an issue, such as damp, a landlord is not automatically liable and required to repair it. In each case the tenant must show the damp has arisen from a landlord’s failure to maintain the property and keep it in good repair, which has caused physical damage to the exterior or structure of the property. The tenant must then show that it is this failure to maintain that has caused the issue complained of.
The structure of a property has been defined by the courts as consisting of the elements of a house that give it its essential appearance and shape. The case of Tanya Grand v Param Gill (2011) concerned whether the interior plaster of a property was part of its structure and the court determined that it was as it represented a material or significant element of the overall construction.
While plaster is considered to be a part of the structure, the décor of a property would not be as it is for decorative purposes only and does not contribute to the overall structure of a property.
For this reason, it is absolutely vital that a tenant who believes they have a claim under Section 11 seeks expert legal advice and the assistance of a suitably qualified and experienced surveyor. It will not be enough for a tenant to show that their property has an issue such as damp. They will need to prove to a court that the damp has been caused by a landlord’s failure to keep the items listed in Section 11 of the LTA 85 in a good state of repair and maintenance.
If defects are caused because of the age and type of a property then this would not amount to a disrepair and a tenant would not have a claim against a landlord.
When a landlord does have an obligation to repair, he must ensure that the repairs are carried out within a reasonable time after he has received a valid notice of the need for them. Reasonable will be determined by the extent and nature of the repairs that are necessary. If the repairs constitute an emergency then the time that the landlord will have could be quite short.
Good Working Order
Section 11 of LTA85 sets out that the pipes, cables and other such media that carry gas, water and electric to a property must be kept in a state of repair and must be working. As such, they must be designed and installed in a way that means that they are capable of carrying out the job for which they have been installed.
If they are installed and working well in all conditions that are reasonably foreseeable then the landlord will have complied with their obligations. However, if they have been installed in a way that causes them to fail, for example, in the case of icy or cold weather, then, as such weather is reasonably foreseeable in the United Kingdom, then they would not be considered adequate and it would be the responsibility of the landlord to have the issues rectified.
Personal Injury
In the event that a landlord has been properly notified of an issue and is required under the terms of the LTA85 to rectify that issue, but does not, a tenant who is named on a lease would be able to pursue a claim against the landlord for personal injury should that issue cause physical harm to them.
It is most likely in such cases that the issue will be one related to or causing damp and that this will.
Advice
If you are the tenant in a property and you have concerns about its condition then, as has been demonstrated above, it is essential for you to obtain specialist advice to assess whether you have a claim against your landlord.
It will be essential to obtain the report of a surveyor who is familiar with the LTA85 and other such legislation to enable them to properly assess your situation and the facts of it.
For specialist advice, call us today on 01253 858231 or e-mail info@mjvlaw.co.uk.
