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.
Michael Vincent
18.01.2019
by MJV&Co
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.
