As a landlord, one of the first things that will come to mind when a tenant reports a maintenance issue, is “does this fall under my landlord repair obligations, or is it my tenant’s responsibility?” There are some grey areas, but its important to establish where the responsibility lies at the beginning of the tenancy in order to reduce any conflict or confusion.
The duties of the landlord and the tenant respectively, concerning the state and condition of the premises, are imposed in three ways:
1. Those implied by statute;
2. Expressed contractual obligations; and
3. Those implied by common law.
In order to be able to determine where the responsibility lies you need to understand the legal stance of landlord repair obligations under section 11 of the Landlord and Tenant Act 1985, as well as obligations underpinned by statute and outlined in the tenancy agreement.
- What are statutory implied terms?
- Who is responsible for the structure and exterior of the rental property?
- What are my landlord legal obligations regarding installations?
- What are my legal obligations with inspections?
- What are my contractual obligations as a landlord?
- Who is responsible for white goods?
- What are common law implied terms?
- What are a landlord’s legal obligations with waste?
- What is considered fair wear and tear?
What are statutory implied terms?
Section 11 of the Landlord and Tenant Act 1985 is the primary legislation governing landlord repair obligations. Section 11 is an implied term in all residential tenancy agreements of less than seven years. The responsibilities relating to landlord repair obligations are broken down into three categories:
Section 11(1) of the Act states:
(a) To keep in repair the structure and exterior of the dwelling-house (including drains, gutters and external pipes); and
(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, fittings 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.
Click here for the full legislation.
Normally, the landlord will only be liable for any repairs once they are aware of the defect, such as the tenant giving them a call or message to let them know.
Landlord repair obligations for structure and exterior of the property
This is as simple as it sounds: the landlord is responsible for repairing and maintaining the structure of the property.
Structure has been defined as ‘those elements of the overall dwelling-house which give it its essential appearance, stability and shape’. (Irvine v Moran 1991.)
If the property is a flat within a block, the landlord is responsible for the structure of the flat as opposed to the entire block. However, the landlord’s obligations may extend to communal areas if their tenant uses them, or the roof if it’s a top-floor flat.
In the case of a flat, the structure of a property, for the benefit of the repairing obligations under Section 11, are:
- The outside walls of the flat;
- The outside of inner party walls of the flat;
- The outer sides of horizontal divisions between flats; and
- The structural framework and beams directly supporting floor, ceilings and walls of the flat.
In all cases, the structure and exterior of the building also include, but are not limited to, windows, window frames, sash window cords, doors, drains, gutters, external pipes, walls and rendering.
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Landlord repair obligations for installations
Installations for the supply of water, gas, electricity, sanitation, hot water and space heating must be kept in repair and proper working order. The installations include, but are not limited to:
- Basins, sinks and baths;
- Sanitary conveniences (toilets);
- Hot water and central heating boilers; and
- Fires (both gas and electric).
Like the structure of the property, landlords must ensure in installations are ‘kept in repair’, but there is also an added obligation to ‘keep in proper working order’.
A landlord’s repairing obligation does not extend to improving the property beyond what was provided to the tenant when the tenancy started. This rule does not apply when a non-required repair is carried out and the property is improved.
Read more: Tenant Rights When Renting Property In 2021
Inspection of a property to carry out landlord repair obligations
When a landlord grants a tenancy, they essential give up the right to possession of the premises during the tenancy. If the landlor enters without the permission of the tenant, they are violating the tenant’s right to quiet enjoyment and will be treated as trespasser.
It is an implied term of all residential tenancy agreements of less than seven years that landlords must give at least 24 hours notice in writing before entering the property for any landlord repair obligations. This can be a message or text but must be in writing. In the extreme circumstance that the landlord serves a notice under Section 11(6) to inspect the property for repairs but the tenant refuses access, the landlord should take court action to enforce his right of entry.
Section 11(6) states:
11 Repairing obligations in short leases
(6) In a lease in which the lessor’s repairing covenant is implied there is also implied a covenant by the lessee that the lessor, or any person authorised by him in writing, may at reasonable times of the day and on giving 24 hours’ notice in writing to the occupier, enter the premises comprised in the lease for the purpose of viewing their condition and state of repair.
In the event that the landlord specifies when they will enter at a given time on a specified date and that they will enter with the keys and the tenant was to remain silent, it will be lawful for the landlord to enter and carry out the inspection. It is critical to note that the intention of the inspection must be ‘for the purpose of viewing their condition and state of repair.’ If the purpose of the inspection is for another reason the landlord is unable to rely on Section 11(6).
The right of entry does not apply to improvements, only to repairs.
There is no statutory right for the landlord to access the property for improvement works. If it is known that access for improvement purposes is likely to be required when drafting the tenancy agreement, it would be advisory to include a clause within the agreement to this affect. The agreement would then permit the landlord access to carry out improvement repairs either to the premises or to any adjoining property in which the landlord also has an interest. Without such a clause in the tenancy agreement, the tenant will be able to prevent the landlord from having access for this purpose, thus preventing improvements from being carried out.
Breach of landlord repair obligations
If a landlord is in breach of their Section 11 repairing obligations, after having been notified of the issue, the landlord may be liable to pay the tenant damages and the court can order the landlord to carry out the repairs.
The tenant can take action against the landlord in the county court for breaches of their repairing obligation. This is a civil action and the tenant can make a claim for damages and inconvenience resulting from the breach.
Section 17 of the Landlord and Tenant Act 1985 allows the tenant to get an order for specific performance by the landlord. This means the county court can make an order requiring the landlord to fulfil the Section 11 repairing obligations. It is important to be aware that it is not just during the tenancy that a tenant can bring an action against the landlord. but also after they have left.
Counterclaims made by tenants for disrepair
Counterclaims made by tenants for disrepair are one of the most common counterclaims made when possession is sought for rent arrears. It is important for landlords to remember that repairing obligations continue even if the tenant is not paying the rent.
Cases have been brought where landlords have come away from court having to pay the defaulting tenant substantial sums of money where such a counterclaim is made.
Exclusions to Section 11
The landlord’s repairing obligations under Section 11 does not require the landlord to carry out works or repairs for which the tenant is liable by virtue of his duty to use the premises in a tenant-like manner.
Section 11 does not require the landlord to rebuild or reinstate the premises in the case of destruction or damage by fire, or by tempest, flood or other inevitable accident, or to keep in repair or maintain anything which the tenant is entitled to remove from the dwelling-house.
It does not fall under the landlord repair obligations to replace a lightbulb. Although, you may want to upgrade to LED lights which potentially last longer and are more energy efficient.
What are contractual obligations?
In addition to common law implied terms and statutory implied terms by Section 11 of the Landlord and Tenant Act 1985, a tenancy agreement can also contain further landlord repair responsibilities by inserting agreed terms into the agreement.
A landlord is not able to insert a clause into the tenancy agreement stating that the tenant is responsible for repairs that are legally their responsibility. Statute always overrides contract and any clause inserted to this nature would be deemed invalid.
As an example, if a landlord was to insert a clause stating that the tenant was responsible for the renewal of the annual gas safety record this would not be a valid clause. It is a landlord’s responsibility to adhered to gas safety regulations, this obligation cannot be overridden by contract.
Landlord repair responsibilities over white goods
When a property is let with white goods supplied by the landlord, it is the landlord's responsibility to either repair or replace the appliances.
This is an implied obligation based on the fact that the landlord has provided the white goods as part of the property.
If the landlord refused to carry out the repair or replacement, the tenant is likely to have a case for compensation against the landlord due to a ‘loss of facility’ being suffered by the tenant.
The tenant could accept a reduced rental for the remainder of the existing tenancy term if the item was not to be repaired or replaced, this would be a form of compensation for loss of facility by means of a rent reduction.
Section 11 repairing obligations do not extend to appliances, therefore it is possible for a clause to be inserted into the tenancy agreement stating that the landlord will not be responsible for repairs or replacement of the items in the event that they require a repair or replacement. A tenant has the option to dispose of the appliance and purchase their own. This is a contractual obligation on the tenant to repair.
It is commonly suggested that an item is removed from the inventory to try and avoid responsibility. This does not change the fact that the landlord provided the appliance and the landlord is liable.
It is generally better to clearly agree what the tenant and landlord repair responsibilities are in the tenancy agreement to avoid confusion later down the line.
The Deregulation Act came into force on 1 October 2015 introducing ‘retaliatory evictions’.
A retaliatory eviction occurs when a tenant reports the need to repair in writing to the landlord and the landlord then serves a Section 21 notice seeking possession of the property.
In the event that a tenant reports the need for a repair, the landlord is required to provide an adequate response in writing within 14 days stating what remedial action works will be carried out.
If the landlord fails to provide an adequate response, the tenant may complain to the local authority who can then carry out a Housing Health and Safety Rating System (HHSRS) inspection. If the local authority deems there to be a hazard (not necessarily a repairing issue) and decide to serve an improvement notice, the landlord is unable to serve a section 21 notice seeking possession of the property for six months.
Additionally, any Section 21 notice served after the tenant reported the need for repair in writing is deemed invalid by the improvement notice served by the council. If a Section 21 notice was served prior to the report of the need to repair, this notice would not be affected.
It is important to note that the HHSRS improvement notice does not have to be for the same issue that was originally reported by the tenant to the landlord, although the complaint to the council needs to be for substantially the same reason as was reported to the landlord.
Read More: Popular FAQs From Landlords and Tenants
What are the common law implied terms for landlord repair responsiblities?
Common law is defined as ‘part of English law that is derived from custom and judicial precedent rather than statutes’.
Common law terms within an agreement (either verbal or written) are implied by case law that has taken place over the years. The main implied terms by case law are:
1. Fit for human habitation;
2. Tenant like manner;
3. Permit waste; and
4. Fair wear and tear
Fit for human habitation
The property must be fit for human habitation meaning in a reasonable state of repair both internally and externally. There should be no dampness, either in the form of penetrating damp or rising damp.
It is common for the responsibility of condensation issues to cause confusion with landlords and tenants. Condensation is caused by an imbalance between heating and ventilation and it may be as a result of a tenant’s behaviour. It may also be due to the property having inadequate ventilation or structural issues. In these situations it could be necessary to have an investigation into the cause in order to ascertain where the responsibility lies.
The Homes (Fitness for Human Habitation) Act 2018 reinforces landlord repair responsibilities and came into force in 2019.
The phrase ‘tenant like manner’ originates from the case of Warren v Keen (1953) and was defined by Lord Denning as ‘to use a property in a tenant like manner’.
Warren v Keen (1953) concerned a tenant on a weekly statutory tenancy, but the law applies in any tenancy situation and even though the judgement was given 65 years ago, it is still regarded as one of the leading common law cases when dealing with repairing obligations.
In this case the tenant was taken to court by the landlord for deterioration of the rented property. Although there was no covenant on the part of the tenant to do repairs, the landlord sought to put this obligation on the tenant.
The landlord claimed that the tenant had a duty to keep the premises wind and water tight and to make general repairs (remember this was before the statutory repairing obligations in Section 11).
In this judgement Lord Denning stated:
“…What does “to use the premises in a tenant like manner” mean? The tenant must take proper care of the place. They must, if they are going away for the winter, turn off the water and empty the boiler. They must clean the chimneys, when necessary, and also the windows. They must mend the electric light when it fuses. They must unstop the sink when it is blocked. In short, they must do the little jobs about the place that a reasonable tenant would do. In addition, they must not damage the house, wilfully or negligently; and they must see that their family and guests do not damage it, and if they do, they must repair it. But apart from such things, if the house falls into disrepair through fair wear and tear or lapse of time, or for any reason not caused by them, then the tenant is not liable to repair it.”Lord Denning, Warren v Keen (1953)
In this case, the tenant was held not liable to pay for repairs to damp and decaying walls of a house, since the disrepair was caused merely by lapse of time which had caused the walls to require repainting. Nor in this case was the tenant liable to pay for repairs to decaying window-sills that had fallen into this condition due to lack of maintenance.
Lord Denning stated that any general DIY task that does not require a degree of experience or expertise is the tenant’s responsibility and does not fall under landlord repair responsibilities.
As an example this would include changing light bulbs, unblocking drains and gutters blocked by the tenant’s actions, changing fuses and treating invasions of vermin etc. (providing they came to the property after the tenancy began).
Landlord repair responsibilities: permit waste
The tenant is not to allow waste. It is a tenant’s responsibility to ensure that a property is not damaged deliberately or through negligence.
If a tenant fails to inform the landlord of a leak in the bathroom and this subsequently caused damage to the ceiling below, this would be classed as permissive waste and the tenant would be responsible for repairing the damage to the ceiling.
The leak in the bathroom is a Section 11 repairing obligation for the landlord, however, as the tenant failed to inform the landlord of the need to carry out the repair, the tenant is considered to have permitted the ceiling disrepair by their failure.
Landlord repair obligations: Fair wear and tear
At the end of a tenancy, the tenant is required to leave the property in the same condition that is was handed to them at the beginning of the tenancy whilst allowing for ‘fair wear and tear’.
If a property was let to a family with three children, the landlord must accept a higher level of fair wear and tear compared to his previous tenants who were a professional couple with no children. Fair wear and tear is known as deterioration due to natural forces.
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