This post was last updated on March 16th, 2021 at 04:02 pm
As a landlord one of the first things that will come to mind when a tenant reports a maintenance issue (like changing a lightbulb) is ‘does this fall under my landlord repair obligations, or is it in fact a tenant responsibility?’ It is important to establish where the responsibility lies at the outset of the tenancy in order to reduce any risk of conflict.
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 and obligations underpinned by statute. This article addresses those terms implied by statute.
In the second article of landlord repair responsibilities, we take a look at expressed contractual obligations and those implied by law.
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 pertaining 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 he is aware of the defect. This may be either as a result of the tenant having notified the landlord or that the landlord learns of the defect in another way.
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) 1 E.G.L.R. 261, approved in Marlborough Park Services v Rowe (2006) 2 E.G.L.R. 27, CA.)
If the property was a flat within a block it would be the structure of the flat in question as opposed to the entire block. However, dependant on the use of the block by the tenant it could include communal areas, or if the flat was on the top floor it would include the roof.
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 includes but is not limited to windows, window frames, sash window cords, doors, drains, gutters, external pipes, walls and rendering.
Landlord repair obligations for installations
It is a requirement that installations for the supply of water, gas, electricity, sanitation, hot water and space heating are kept in repair and proper working order. The installations will include but are not limited to:
- sanitary conveniences;
- hot water and central heating boilers; and
- fires (both gas and electric).
Installations must not only ‘kept in repair’ but there is also an added obligation to ‘keep in proper working order’ whereas with the structure and the exterior the obligation is limited to being ‘kept in repair’.
A landlord’s repairing obligation does not extend to improving the property beyond what was provided to the tenant when the tenancy commenced. This rule does not apply when the repair is not required and as a result of the repair an improvement is achieved.
Inspection of a property to carry out landlord repair obligations
By the landlord granting a tenancy it deprives the landlord himself of the right to possession of the premises during the tenancy. If the landlord was to enter without the permission of the tenant, or reserving to himself the right to do so, he is liable to be treated as a trespasser.
It is an implied term of all residential tenancy agreements of less than seven years that the landlord will fulfil his section 11 landlord repair obligations and therefore may enter and inspect the property for repairs upon giving at least 24 hours’ notice in writing. In the event that the landlord serves a notice under section 11(6) to inspect the property for repairs but the tenant responds refusing 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 he will enter at a given time on a specified date and that he will enter with his 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, it only applies 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 his section 11 repairing obligations, after having been notified of the issue, the landlord may be liable to pay the tenant damages and an order can be made by the court requiring the landlord to carry out the repairs.
The tenant can take action against the landlord in the county court for breaches of his 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, therefore the county court has the power to 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 even 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 do 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.
We will discuss acting in a ‘tenant like manner’ within part two of our ‘landlord repair obligations’ newsletter.
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.
To answer the opening question, the answer is no – 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 🙂