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1. Check what your tenancy agreement says

Terms in a tenancy agreement may impose obligations on a landlord relating to the condition of the property.  It is these terms the landlord is contractually bound to perform. 

Part 2 of the Consumer Rights Act 2015 applies to tenancies after 1 October 2015. This renders unfair terms in a tenancy agreement unenforceable. 

2. Understand that terms can be implied by law

The main repair obligations are implied by law (s.9A and s11 of the Landlord and Tenant Act 1985 (LTA)). Any attempt to transfer these obligations onto a tenant are void. 

Fitness for human habitation- s9A LTA

This is a new implied term, having come into effect after 20 March 2019. 

It is implied that the property is fit for human habitation at the time the tenancy was entered into and will remain fit for human habitation. In determining whether a property is fit for human habitation, regard is to be had to its condition in respect of a number of factors set out in s10(1) LTA. These factors include: 

• repair, 
• stability, 
• freedom from damp, 
• internal arrangement, 
• natural lighting, 
• ventilation, 
• water supply, 
• drainage and sanitary conveniences, 
• facilities for preparation and cooking of food and for the disposal of waste water, and 
• any prescribed hazard. 

Prescribed hazards are listed in the housing Health and Safety Rating System (England) Regulations 2005 Sch 1:

• Damp and mould growth
• Excess cold
• Excess heat
• Asbestos and MMF
• Biocides
• Carbon monoxide and fuel combustion products
• Lead
• Radiation
• Uncombusted fuel gas
• Volatile organic compounds
• Crowding and space
• Entry by intruders
• Lighting
• Noise
• Domestic hygiene, pests and refuse
• Food safety
• Personal hygiene, sanitation and drainage
• Water supply
• Falls associated with baths etc
• Falling on level surfaces etc
• Falling on stairs etc
• Falling between levels
• Electrical hazards
• Fire
• Flames, hot surfaces etc
• Collision and entrapment
• Explosions
• Position and operability of amenities etc
• Structural collapse and falling elements

A property will be unfit for human habitation if, and only if, it is so far defective in or more of the above letters that it is not reasonably suitable for occupation in that condition. 

The repairing obligation – s11 LTA

The obligation is to:

• keep in repair the structure and exterior of the property (including drains, gutters and external pipes),
• keep in repair and proper working order the installations in the property 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
• keep in repair and proper working order the installations in the property for space heating and heating water.

The landlord/ landlord’s agent is given a right to enter the property for the purpose of viewing the condition and state of repair on giving the tenant 24 hours’ notice in writing: s11(6) LTA. 

“To keep in repair” means that there is a continuing obligation to keep up the standard of repair in the property throughout the tenancy. It requires the landlord to put the property into repair if they were not in good repair at the outset of the tenancy. 

“Structure and exterior”. There must be shown that there is some part of the structure or exterior which is in a state of disrepair and therefore requires repair. Structure refers to those elements of the overall property which give it its essential appearance, stability and shape. Case law has determined that internal wall plaster is part of the structure, as are banisters and extractor fans. The exterior is the outside or external parts of the property. 

Defective Premises Act 1972

Imposes a duty on all those, including landlords, who undertake work for or in connection with a property to:

• Do the work in a professional or workmanlike manner;
• Use proper materials; 
• Ensure that the property is fit for human habitation when completed. 

s4 DPA in some circumstances makes landlords liable for personal injury or property damage caused by disrepair, even though the landlord did not have knowledge of the need for repair; and in some circumstances, it creates new obligations to prevent the condition of the property causing personal injury or property damage. 

Decoration 

The requirement to “repair” carries with it an obligation on the landlord to make good or redecorate on completion of repair works. 

3. Beware of the limitations of the landlord’s repair obligations 

An express term will never be construed to require the landlord to renew the whole property. The scope of the landlord’s repair obligations is to be in regard to the condition of the property as it was at the date of the letting. 

Repair is the converse of disrepair. There must be disrepair before the landlord is liable to repair. Disrepair occurs when there is deterioration ie when part of the property is in a worse condition than it was at some earlier time. A landlord is not liable under a repairing obligation simply because part of the property was designed or constructed badly. If the property has always had the defect in question, there has been no deterioration. 

Sometimes work can be too extensive or costly to be a “repair”. This can include complete replacement of foundations, replacement of the whole of a steel frame, and the installation of a damp-proof course. 

Small defects such as nail holes and minor cracking (to plaster or rendering) are in many cases not considered to be sufficiently serious to amount to disrepair. The reason is that the courts have found that deterioration has to be of a matter of fact or degree which is unacceptable. 

No liability will generally arise until a landlord has been put on notice and has had a reasonable time to rectify the defects. A reasonable time will generally take into account a variety of factors, including the scale and severity of the disrepair/unfitness, whether the tenant is actually living in the property, the availability of replacement parts and (in the case of social landlords) the overall workload. If there have been issues in obtaining access to the property this can limit the landlord’s liability. 

A landlord is not required to carry out works (nor will be liable for damages) where: 

• The works are the obligation of the tenant under the duty to use the premises in a tenant-like manner, or where the unfitness is wholly or mainly attributable to the tenant’s own breach of tenancy. 
• Works entail repairing or maintaining anything the tenant is entitled to remove from the property (the tenant’s or their household’s belongings, white goods, heaters etc). 
• Works would be to rebuild or reinstate the property after destruction or damage by act of God (fire, flood, storm) or inevitable accident. 
• Works or repairs that would be in breach of planning permissions, or listed building restrictions, or to conservation area restrictions. 
• The works require the consent of a superior landlord or third party, reasonable endeavours have been made by the landlord to obtain that consent, but it has not been given. 

In determining the standard of repair to be required, regard is to be had to the age, character, and prospective life of the property and the locality in which it is situated. 

A landlord is entitled to perform their repairing obligations in the manner which is least onerous to them, provided they choose a reasonable method of repair. 

Where there is an obligation to repair which requires the replacement of installations or fittings which are beyond economic repair, the obligation is to replace them on a like for like or nearest equivalent basis. There is generally no requirement to upgrade fittings or bring them in line with current standards. 

The standard of repair is no higher for a social landlord than it is in the private rented sector. 

*The above entry was made possible by reference to Housing Conditions: tenant’s rights (6th edition) published by Legal Action Group (LAG).