In Victorian times, perhaps not surprisingly, the common law was very much on the landlord’s side. The much quoted passage of Chief Justice Earle in Robbins v Jones 1863 puts it succinctly: “A landlord who lets a house in a dangerous state is not liable to the tenant's customers or guests for accidents happening during the term: for, fraud apart, there is no law against letting a tumble-down house; and the tenant's remedy is upon his contract, if any.”
What is surprising however, is that this is still largely the position at common law. The position was restated in Cavalier v Pope (1906) which remains good law and was cited as such, as recently as July 2012, in the QBD of the High Court in Drysdale v Hedges.
Whilst tenants have been able to pursue claims for breach of contract, it is probably fair to say that tenants were often not dealing on an ‘equality of arms’. Parliament has however, been kinder to tenants, albeit not until relatively recently. It was not until the implementation of the Occupiers Liability Act (1957) that a duty of care was established in statute for landlords towards their tenants and any third parties who might be injured by their failure to maintain or repair property. The duty arose under S4 and was repealed and replaced by the Defective Premises Act (1972) which remains in force.
S4 of the Act provides that where premises are let under a tenancy which provides repairing or maintenace obligations on the landlord, the landlord owes a duty to all persons to take such care as is reasonable to see that they are safe from a ‘relevant defect’ that the landlord knew of or ought to have known of.
A duty is owed not just to the tenant but to his family visitors and other persons who might reasonably be expected to be affected, including trespassers. The duty in relation to ‘knowledge’ of the defect is high and can be implied on the landlord even if not reported by the tenant. This can cause problems for landlords who choose not to inspect their properties.
A ‘relevant defect’ is any defect in the state of the premises caused by an act or omission by the landlord, which constitutes a failure by him to carry out his tenancy obligations during the course of the tenancy (including the time when possession is taken in contemplation of the letting). The courts however, are often prepared to take a fairly narrow view as to what constitutes a ‘relevant defect’.
In Alker v Collingwood Housing Association (2007), a case where Keoghs represented the successful defendant, a child suffered injury when she cut her hand on a glass panel in the front door of her house. The Court of Appeal (CoA) rejected the claimant’s arguments that the defendant had a duty to replace the glass with safety glass. They held the glass panel was not in disrepair, it was not a relevant defect and the defendant was under no duty pursuant to the Act to repair or maintain it.
In Drysdale v Hedges 2012 the claimant slipped on the external steps of the defendant’s mid-terraced Victorian house. The steps had been painted, which, on the claimant’s, case caused them to be unduly slippery when wet. There was no handrail and an unguarded drop from the steps to the basement. On the face of it this created difficulties for the defendant. The court held, however, that the paint, whilst increasing the risk of slipping, did not require ‘repair’. Similarly, in respect of the drop, there was no evidence that the wall was any different at the time of the accident to when the defendant acquired it and could not therefore, be said to be out of repair.
A landlord potentially owes duties under the Occupiers Liability Act (1957) although doubt was raised by the court in Drysdale v Hedges because the duties of the landlord originally S4(6) of the Act were replaced in similar but not identical terms by S4 of the Defective Premises Act (1972). It was considered unlikely that Parliament intended for both sections to define a landlord’s duty and therefore the duty of care should normally be confined to the 1972 Act.
Landlords also have duties to their tenants pursuant to the Landlord and Tenant Act (1985). The duties owed under this Act are just to the tenant and do not extend, for example, to the tenant’s partner and children living in the property.
The principle obligations are contained in S11 which creates an implied covenant on the landlord:
Decisions as to what constitutes, “structure and exterior of the dwelling house,” and failure to, “keep in repair,” are not straightforward. There is a clear general principle, however, that the covenant can be enforced without the landlord having notice of the defect when the defect occurs in part of the premises over which the landlord retains control.
The position is reversed when the defect occurs within the demised premises themselves. In these circumstances breach only occurs when the landlord has, “information about the existence of the defect such as would put a reasonable landlord on enquiry as to whether works of repair are needed and he has failed to carry out the necessary works with reasonable expedition thereafte.” (British Telecommunications plc v Sunlife Assurance Society plc (1995)). The landlord is entitled to reasonable time following notice to carry out the repair. The onus is on the tenant to prove unreasonable delay.
There is a tendency on the part of claimant’s solicitors to ‘throw the kitchen sink’ at these cases in terms of allegations in the hope that enough will stick to persuade defendants to settle. It is therefore important to analyse the allegations in a forensic way. It is also important that defendants keep records of complaints, repairs, inspection and maintenance documents as these will be vital in supporting any defence.
Kate Burt
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