Keoghs Insight

Author

Kelly Ellery

A guide to key legislation in landlord and tenant property damage claims

AWARE14/06/2017
Property Aware 5

This article examines the common types of property damage claims which Keoghs are often asked to review and the key legislation which will be applicable to those cases, dependent on the type of damage sustained.

The three pieces of legislation which apply to these types of claims are:

1. The Landlord and Tenant Act 1985
2. The Defective Premises Act 1972 and
3. The Occupiers Liability Acts 1957 and 1984.

Claims brought under the provisions of the above legislation are third party claims against property owners and / or occupiers and will relate to property damage and / or personal injury resulting from defects associated with property. Consequently, it is necessary to consider the specific components of each Act and how this applies to the claim presented.

1. The Landlord and Tenant Act 1985

The Landlord and Tenant Act (“the LTA 1985”) relates to residential tenancies. The typical type of case will usually involve claims for housing disrepair which are brought by tenants against their landlords. It is common for these claims to be brought as counterclaims following a landlord’s claim for rent arrears.

The claim will often involve a claim for damage to the tenant’s personal chattels and personal injuries to occupiers. One key feature arising from these cases is that they can often result in significant legal costs being incurred unless they are proactively managed.

Section 11 of the LTA 1985 sets out a landlord’s repairing obligations as follows:

(1) In a lease to which this section applies (as to which, see sections 13 and 14) there is implied a covenant by the lessor
(a) to keep in repair the structure and exterior of the dwelling house (including drains, gutters and external pipes)
(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.

In addition to the legislation, the tenancy agreement may also contain express terms relative to the landlord’s obligations. It is always important to check these provisions as potentially they could be more extensive than the statutory obligations.

The common type of claim include issues relating to water ingress, dampness, mould, condensation, draughts, heating or drainage.

The starting point for these claims is to establish whether the tenant’s complaint falls within the landlord’s repairing obligations under the LTA 1985. If not, then any express terms of the tenancy agreement also need to be looked at in order to ascertain whether there are any obligations upon the landlord to keep the installations in repair.

In the absence of any statutory obligation or express term in the tenancy agreement, potentially the landlord has a defence to the claim.

Defences available to landlords

A landlord will not be responsible in circumstances where a tenant is in breach of their duty to behave in a ‘tenant like’ manner. This can include scenarios where a tenant decides to carry out work to a property without permission and causes damage to the property in the process. The landlord has no obligation to rectify the damage caused by the tenant.

In accordance with section 11 of the LTA 1985 a tenant must give notice to the landlord of the disrepair. Resultantly, a tenant will have to prove that they have given notice of disrepair in order to succeed with their claim.

Once the notice has been given, the landlord has a statutory right to enter the property at a reasonable time of the day in order to inspect the condition and state of the disrepair complained of. The landlord is obliged to provide the tenant with 24 hours’ notice of the right to enter the property. If the repair works require access to parts of the building over which the landlord does not have a right of access, then it is a defence for the landlord to show that they make all reasonable efforts to gain access but were unable to do so.

Following the inspection of the property, the landlord must then complete the repairs within a reasonable period. What constitutes a reasonable period is not defined in the statute and it will depend on the type and extent of the repair. The period of time will probably be longer for those repairs that are substantial in cost and are more extensive to undertake.

However, this may not be the case where the repair works are in the nature of an emergency (e.g. where the defect is a burst water pipe). A ‘reasonable time’ could be a very short period notwithstanding any other factors.

The standard of repair

The standard of repairs expected of landlords will vary and will be dependent on a number of factors such as the age, prospective life, character and location of the property.

By way of an example, a 150 year old house is unlikely to be expected to be in the same condition as a new one. Single glazed, draughty windows could potentially be considered as in reasonable repair in a Victorian property. However, it would probably be viewed as in poor condition if those windows are present in a new flat or house.

Good tenantable repair has been defined by the court in terms of:

“...such repair as, having regard to the age, character, and locality of the house, would make it reasonably fit for the occupation of a reasonably-minded tenant of the class who would be likely to take it”

The compensation

In the event that a tenant succeeds with the claim, there are two types of compensation that the court can award.

• The first is in respect of special damages and it relates to damage caused to the tenant’s personal property such as furniture / belongings and any expenses incurred as a result of the disrepair.

• The second element is in respect of general damages such as the distress and inconvenience caused to the tenant and their family as a result of living in a defective property. This is usually calculated on the basis of a reduction in rental liability for the relevant period.

In summary

In order to bring a successful claim against a landlord, the tenant needs to prove the following:

1. The property does or has suffered from disrepair to the structure for which the landlord was liable

2. The landlord was aware of the defect

3. Reasonable access was provided to the landlord to inspect and remedy the defect

4. The landlord failed to carry out repairs within a reasonable period of time.

If the tenant can demonstrate all of these components then compensation is likely to be awarded - provided that the claim is brought within the six year limitation period.

2. The Defective Premises Act 1972

The Defective Premises Act 1972 (“the DPA 1972”) extends the repairing obligations of landlords. The purpose of this legislation was to ensure that landlords faced a liability for dangerous premises which they rent out. Prior to the implementation of the DPA 1972 landlords did not have any liability to injured persons at common law or under the Occupiers Liability Act 1957.

Parliament took the view that landlords made a lot of money renting out unsafe properties and they did not have any liability for the accidents that occurred. Accordingly, Parliament considered that as the landlord made all the money from the property therefore, it was the landlord who ought to have the responsibility of basic maintenance and upkeep of the property including a liability to meet a claim brought by their failure to meet their obligations which would potentially be covered by an insurance policy.

The duties under the Act

The relevant provision in respect of the landlord’s duties and obligations is set out within section 4(1) which says that:

“Where premises are let under a tenancy which puts on the landlord an obligation to the tenant for the maintenance or repair of the premises, the landlord owes to all persons who might reasonably be expected to be affected by defects in the state of the premises a duty 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”

Section 4(2) further provides that:

"The said duty is owed if the landlord knows (whether as the result of being notified by the tenant or otherwise) or if he ought in all the circumstances to have known of the relevant defect”.

In essence, the above provisions bestow a duty to repair and maintain the property upon the landlord to anybody who could reasonably be expected to be harmed by a breach. This includes tenants, their friends and family and it also extends to trespassers. The duty applies in circumstances when a landlord ought to have known of a defect, not just when he has been informed of a defect.

In addition, a landlord who merely has the right to repair property rather than an obligation to do so will still be caught by the ambit of the legislation, if one of the groups identified in section 4 is injured as a result of a failure to repair. It is worth noting that it is unlikely that the communal areas or common parts of a building will be covered by the provisions of the DPA 1972. Consequently, the provisions of the Occupiers Liability Act 1957 provides a potential remedy for those types of claims. It is clear from section 4(1) that the duty is on the landlord and there is no scope for the landlord to evade liability by deflecting the claim to third parties such as managing agents or contractors. However, it is still possible for the landlord to seek a contribution or an indemnity from third parties, if the circumstances permit.

The persons to whom the duty is owed

The landlord’s duty is to those who would be expected to be affected by any defect at the property. This is wide ranging in scope and applies to those persons living in, staying at and visiting tenanted properties.

It is difficult to conceive of circumstances where anybody who is injured when visiting the property would not be covered, with the potential exception of burglars, for example.

The relevant defect

The duty is in respect of injury or damage caused by the relevant defect. Consequently, it is crucial to determine what the “relevant defect” constitutes in order to determine whether the landlord has a liability.

Section 4(3) says that:

“relevant defect means a defect in the state of the premises existing at or after the material time and arising from, or continuing from, or continuing because of, an act or omission by the landlord which constitutes or would if he had had notice of the defect, have constituted a failure by him to carry out his obligation to the tenant for the maintenance or repair of the premises”

The starting point is to consider whether the defect is one which the landlord is responsible for repairing (or would have been if the landlord was aware of it).

Regardless of what the tenancy agreement states, the landlord has to keep in repair the structure and exterior of the property because it is an implied term by section 11 of the LTA 1985.

It is possible that there is a dangerous fault at the property. However, if it does not fall within the parameters of the landlord’s repairing obligation it will not fall to be a “relevant defect” within the meaning of the DPA 1972.

The next point is to determine whether there is a “defect”. Defective in this context means that something has fallen into ruin because of a failure by the landlord to maintain it. There is no positive duty on the landlord to “improve” something that is already in place and in good condition but outdated.

In summary

The main points to be derived from the DPA 1972 are:

a. A landlord is only liable for those matters which he knew about or should have known about.

b. Whether the landlord has a right or an obligation to enter the premises and whether knowledge is imputed.

c. The majority of tenancy agreements provide scope for a landlord to enter the premises in order to carry out repairs.

3. The Occupiers Liability Act 1957 and 1984

The purpose of the Occupiers Liability Act 1957 & 1984 (“the OLA 1957” and “the OLA 1984”) is to deal with injuries arising out of the state of the premises or things done or omitted to be done those premises.

The legislation imposes a duty on occupiers of property for the benefit of visitors to that property. It also deals with duties owed by contractors when on the property. Until the OLA 1984, duties to trespassers were excluded.

Section 2(1) of OLA 1957 says that:

“An occupier of premises owes the same duty, the common duty of care, to all his visitors, except in so far as he is free to and does extend, restrict, modify or exclude his duty to any visitor by agreement or otherwise”.

The common duty of care

What is the common duty of care? This is set out in Section 2 (2) of the OLA 1957 as:

“Duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted to be there”.

The relevant circumstances will comprise a variety of factors. For instance, an occupier must be prepared for children to be less careful than adults. In the case of Glasgow Corporation v Taylor [1922] a seven year old child died after eating poisonous berries from a bush in a park. The berries, which looked like cherries, were found by the court to constitute an allurement to the child. Accordingly, the park owner was held liable.

In respect of a tradesman or contractor, an occupier may expect that a person in the exercise of a trade will appreciate and guard against any special risks. In Roles v Nathan [1963] two chimney sweeps were instructed to clean a boiler flue. A boiler engineer warned them about the risk of carbon monoxide poisoning if they cleaned the flues with the fires still lit, but they disregarded the warning and continued until they were overwhelmed by carbon monoxide poisoning and died. The court held that the occupier was not liable, because the chimney sweeps had been warned and a householder who calls in a specialist can reasonably expect the specialist to guard against any dangers.

Breach of duty

An occupier may wish to place warning signs about the property to advise of any potential hazard, however, this may not absolve an occupier from liability unless they make the visitor safe in all the circumstances.

Further, an occupier is prevented from absolution of liability under section 2 of the Unfair Contract Terms Act 1977 (UCTA 1977). This sets out that a person cannot by reference to any contract term or to a notice given to persons exclude or restrict their liability for death or personal injury resulting from negligence. This is further consolidated in the recent implementation of section 65 of the Consumer Rights Act 2015 (CRA 2015) which says that a trader cannot be a term of a consumer contract or by notice exclude or restrict liability for death or personal injury resulting from negligence.

Potential Defences to Claims under the OLA 1957 and the OLA 1984?

There are potential defences available to occupiers on the following basis:

1. Volenti if a person accepts and consents to the hazard.

2. Exclusions such as appropriate warnings however this is likely to be limited in scope due to UCTA 1977 and CRA 2015 which does not allow commercial traders to warn their way out of negligence.

3. Contributory negligence if the person injured contributed to the accident by their own conduct.

4. Ex turpi causa non oritur action if the person was in the course of carrying out an illegal or immoral act they cannot benefit from that wrongdoing.

What should insurers do?

What steps should an insurer take in the event that a claim is presented under the provisions of LTA 1985, DPA 1972 and the OLA 1957 & 1984? The key issue is to consider the policy wording in order to ensure that the claim is covered by the ambit of the policy. Steps should be taken to examine any exclusions clauses as they can potentially affect the claim on the policy. It is also important to determine which Act the claim is going to be pursued under as this will have a potential bearing on the scope of cover.

As the legislation demonstrates, whether there is a liability to meet in these types of cases will be a question of degree and fact in each individual claim. Consequently, each claim should be examined very carefully upon presentation to the insurer and the necessary evidence should be gathered at the earliest opportunity.

Kelly Ellery
Solicitor
T: 01204 678651
E: kellery@keoghs.co.uk