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2.4 Statutory Implied Terms

2.4.1 Landlord And Tenant Act 1985

 

Section 11 of the Landlord and Tenant Act 1985 implies a term into tenancy agreements for less than seven years that the landlord shall keep in repair:

 

the structure and exterior of the dwelling the installations for the supply of water, gas, electricity and sanitation the installations for the supply of space heating and water heating and the communal areas and installations associated with the dwelling (section 11 as amended by section 116 of the Housing Act 1988), where these are controlled by the landlord.

 

The Act also provides that the standard of repair necessary will vary depending on the ‘age, character, and prospective life of the property and its location’.

 

The structure and exterior of the property includes physical exterior walls, windows and doors but not paths to access the property and fences.

 

Further, a landlord’s obligation not only extends to parts s/he may physically own but also may include parts where there is a right of way. For example if a landlord owns a flat within a block on a long lease and has a right of way along the hallway leading to the front door, the landlord will have a duty to repair the hallway even though s/he only has a right of way and does not actually own it (it will be owned by the freeholder in this example).

 

2.4.2 Notice Of The Defect

 

As a general rule, where a defect appears within the boundaries of a tenancy (within the demise), a tenant is under a duty to notify the landlord of any defect.

 

The landlord will not be in breach of the repairing obligation until s/he has received notice of the defect and if works are then completed with ‘reasonable expedition’.

 

This general rule does not apply where the defect is not within the demise such as a shared roof or shared path for example. A landlord is advised to regularly inspect these parts to check for the need to repair.

 

It might be possible for a term in a tenancy agreement to require the tenant to provide notice where the defect is not within the demise.

 

2.4.3 Access To Property

 

Section 11 — sub-section (6) implies a term into the tenancy agreement that landlords with section 11 repairing responsibilities (or people authorised by them) have the right to access the property for the purpose of viewing its condition and state of repair. Access can only be at reasonable times of the day and after giving the tenant not less than 24 hours’ notice in writing. This section does not extend to actually carrying out the repairs. Section 16 Housing Act 1988 implies a term into all assured and assured shorthold tenancies that the tenant will afford access for carrying out repairs and reasonable facilities for executing those repairs (such as electricity for drills for example). In other types of tenancy, it will be an implied term that a landlord may enter to carry out repairs. However, the right to enter to do repairs (subject to notice being given) is generally included in tenancy agreements and if the tenant refuses to allow the landlord access to carry out the repairs, the tenant will not be in a position to complain about the property or to claim for damages for disrepair or for personal injury caused by the disrepair.

 

Indeed if the tenant’s failure to allow the landlord access to do the works results in further deterioration or damage to the property, the tenant may be liable to the landlord (entitling the landlord, for example, to deduct the additional costs incurred from the damage deposit).

 

Note that although section 11(6) gives the landlord the right to enter the property (after having given notice), this does not mean that the landlord is entitled to enter the property at that time, irrespective of whether the tenant asks the landlord not to. However, if the particular appointment time is inconvenient, the tenant will be expected to consent to an appointment at another time.

 

If the tenant refuses to allow the landlord access at all, the tenant will be in breach of their tenancy agreement. In some circumstances (for example if the property is clearly in disrepair) this may entitle the landlord to apply for an order for possession.

 

Generally, landlords should be wary about entering the property when the tenant is not there. Where a tenant has given permission, but has advised they will not be at the property themselves, it is recommended that landlords/agents are accompanied by a witness.

 

2.4.4 Breach Of Repair Obligations

 

The landlord will be able to pass on the cost of works or repairs to the tenant if work is needed because of the tenant’s breach of their obligations under the tenancy.

 

Action can be taken by the tenant in the County Court for breaches of the landlord’s repairing obligation. This is a civil action and tenants can claim compensation for damage and inconvenience resulting from the breach.

 

The landlord should receive notice of this in advance of any claim being brought, as tenants are now obliged to comply with the ‘Pre-action Protocol for Housing Disrepair’. This protocol provides that tenants must inform their landlord in writing (an ‘early notification letter’ followed by a ‘letter of claim’) of all relevant matters before issuing legal proceedings. The protocol gives full details of the information to be provided and specimen letters. If the tenant does not comply with the protocol, the landlord can ask the court to stay the claim until the provisions of the protocol have been complied with. A copy of the protocol can be downloaded from the Justice website at http://www.justice.gov.uk/about/hmcts/. The protocol does not apply if the tenant is counterclaiming against a landlord’s claim (for rent arrears for example).

 

Section 17 of the Landlord and Tenant Act 1985 requires specific performance (saying the landlord will have to do the repair) where there has been a breach, i.e. the payment of compensation may not be sufficient remedy.

 

This means that the County Court can make an order requiring the landlord to fulfil the express or implied repairing terms of the tenancy agreement. The County Court can make an injunction requiring the landlord to do repair work which may or may not be within the terms of the contract. If the landlord fails to carry out the works required by the court order, the landlord, or his agent, can in very extreme situations be committed to prison for contempt. The County Court can alternatively direct that the repairs be undertaken by, or on behalf of, the tenant at the landlord’s expense.

 

Damages (compensation) can still be claimed even if the works have been carried out by the time the case reaches court.

 

In practice it is rare for these extreme measures to be used. However, it is important to be aware that these penalties exist, and every care should be made to respond promptly to repairing obligations when they arise. It is, after all, protecting any financial investment. If the property is properly insured some work may be covered by the insurance policy.

 

2.4.5 Defective Premises Act 1972

 

Section 4 of the Defective Premises Act 1972 places a duty of care on the landlord in relation to any person who might be affected by a defect, ‘to take such care as is reasonable in all the circumstances to see that they are reasonably safe from personal injury or from damage to their property caused by a relevant defect’.

 

This is civil redress. A defect is relevant if the landlord knew about it or should have known about it – the fact that a defect has not been reported or there has been a failure to inspect (e.g. rotten floorboards or joists) does not remove liability. It is for this reason that it is important that landlords (or their agents) carry out regular checks on the property.

 

In this case the premises include the whole of the letting – i.e. including gardens, patios, walls, etc – and can be applied to the communal areas of estates or multi-occupancy buildings, including lifts, rubbish chutes, stairs and corridors. Section 4 provides tenants or other affected persons with the right to seek compensation for personal injury or damage to property.

 

2.4.6 Occupiers’ Duty Of Care

 

Section 2 of the Occupiers’ Liability Act 1957 provides that the occupier of a property has a duty of care to all visitors who come onto their premises. This applies to landlords where they are the legal occupier of some parts of their rented stock, e.g. shared-use areas such as lifts, staircases and entrance lobbies – in some cases even grounds and car parks.

 

The duty means taking such care as would be reasonable in all circumstances to see that the visitor is reasonably safe in using the premises for its purpose. The landlord is liable for any injury caused to a visitor as a result of defects in the part of the building occupied by the landlord.
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