In part 1 of our landlord repair responsibilities series, we discussed duties of the landlord that are implied by statute. In part 2, we will be discussing expressed contractual repairing obligations and those implied by common law.
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 his 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?
In the event that a property is let with white goods supplied by the landlord and they were to require repair, by default, it would fall under landlord repair responsibilities 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.
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 deem 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.
What are the common law implied terms?
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.
Tenant like manner
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? It can, I think, best be shown by some illustrations. The tenant must take proper care of the place. He must, if he is going away for the winter, turn off the water and empty the boiler. He must clean the chimneys, when necessary, and also the windows. He must mend the electric light when it fuses. He must unstop the sink when it is blocked by his waste. In short, he must do the little jobs about the place which a reasonable tenant would do. In addition, he must, of course, not damage the house, wilfully or negligently; and he must see that his family and guests do not damage it: and if they do, he 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 him, then the tenant is not liable to repair it.”
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 repointing. 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 post tenancy commencement).
The tenant is not to permit 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.
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 would have to 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.