In the first of two articles, I will provide a quick guide to housing disrepair claims where remedies of damages and/or specific performance are sought.
Compensation or injury?
It should be noted that claims primarily seeking compensation or specific performance against a landlord regarding disrepair to the structure, exterior, or specific installations of a property should be made via the Landlord and Tenant Act 1985 section 11 (LTA 1985) (as amended by the Homes (Fitness for Human Habitation) Act 2018).
Claims that seek to proceed with personal injury or damage to parts of a property (including the specific parts detailed in LTA 1985 section 11)) in mind should normally be pursued via the Defective Premises Act 1972 (which I will cover in my next article on this topic).
Applicable tenancies and the implied obligation to repair
Specific residential tenancies (generally, those granted for less than seven years, with some social housing exceptions and agricultural tenancies) come with an implied obligation on the landlord (via section 11) to:
- keep in repair the structure and exterior of the dwelling-house (including drains, gutters and external pipes);
- 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
- keep in repair and proper working order the installations in the dwelling-house for space heating and heating water.
For local authorities, the above obligations also apply to a secure tenancy for a fixed term of seven years or more granted by a public authority that meets Housing Act 1985 section 80(1).
It is also important to note that the implied obligations cannot be contracted out of by parties unless there is a prior court order (per LTA 1985 section 12(1)).
As regards what parts of the property in question the implied obligations cover, as well as the items specifically included in section 11, unless it is expressly set out in the tenancy agreement (with the preface that the landlord cannot use the agreement to seek to limit their obligations), there is some case law that can assist. However, depending on what the alleged item in disrepair is, research may need to be undertaken to determine whether it does come under section 11 or not on a case-by-case basis.
Actual disrepair and the standard required
Once the implied obligations are in play, we then move onto whether there is disrepair. It is a simple, but important point: the obligation only arises where there is actual disrepair.
- For example, many claims are brought under the premise of there being damp and/or condensation in the property. The damp/condensation alleged must have occurred as a result of a part of the property being in disrepair, rather than due to a design defect, per Lee v Leeds City Council  EWCA Civ 6.
The standard or repair required depends in part on the nature of the property itself. However, it should be noted that landlords are not obliged to carry out repairs if the disrepair is due to the tenant not using the property in a tenant-like manner.
This can often be the sticking point for claims. A tenant must give the landlord notice of the disrepair and allow them a reasonable opportunity to carry out repairs (with this including a right for the landlord to enter the property to carry out said repairs).
As a rule of thumb, if there is no record of a tenant providing written notice of the alleged parts of the property being in disrepair to the landlord, then the landlord will be entitled to query whether they were given actual notice of the disrepair (and in turn, whether their obligation to repair ever actually arose). For example, often the tenant may say they told the landlord about the issues via telephone (which can be disputed as being insufficient evidence to demonstrate the landlord being given notice depending on whether or how the calls were recorded).
Having said this, per O’Brien v Robinson  AC 912, a tenant may be able to rely on the landlord having “constructive notice” of the disrepair, or in the words of Lord Diplock, whether “the landlord had information about the existence of a defect…such as would put him on inquiry as to whether works of repair to it were needed”. Whether the landlord in question did have such notice would be determined on a case-by-case basis.
There is a distinction regarding what would constitute sufficient notice between claims brought under LTA 1985 section versus those brought under Defective Premises Act 1972 section 4, which I will explore in my next article on this topic (although readers are referred to Harry v Sykes and another  QB 1014 for an initial exploration of said distinction).
Although there is no duty on landlords to do so (per Rogerson v Bolsover DC  EWCA Civ 226), landlords would be advised to carry out semi-regular visits to properties, to maintain communications with tenants to try to identify any areas of concern before they arise, and to consider including a term in agreements that state how notice should be given if required by tenants.
In giving notice to a landlord of disrepair, tenants should ideally write to them with all the relevant details of the disrepair, including the date of the notice and any photographic evidence of the disrepair.
If and once a claimant has successfully navigated the various hurdles set out above, the next step is determining what they are claiming for.
Having established breach of the implied terms above, a claimant may be able to seek the following (with the general provisions of proving loss, causation, and remoteness as factors also):
- Damages (with this covering a variety of points such as costs of repairs, general inconvenience and distress, loss of enjoyment and any other costs that are not too remote from the breach);
- Self-help, deduction and set-off;
- Specific performance and/or mandatory injunction; and
- A declaration from the court regarding the landlord being in breach (as a precursor to the tenant carrying out the repairs themselves);
LTA 1985 sections 9A-9C
In response to the now defunct provisions of LTA 1985 section 8 and the often frustrating Housing Act 2004 provisions (with the tenants having to go through their local housing authority), LTA 1985 was amended recently by Homes (Fitness for Human Habitation) Act 2018 to include sections 9A-9C which place the following implied covenants on landlords:
- To ensure that the dwelling is fit for human habitation at the time the lease is granted or otherwise created or, if later, at the beginning of the term of the lease; and
- To ensure the dwelling remains fit for human habitation during the term of the lease.
This provision mainly applies to more extreme housing disrepair scenarios, with LTA 1985 section 10 and Housing Act 2004 section 2 (prescribing the same hazards as set out in the Housing Health and Safety Rating Systems (HHSRS) used by local housing authorities) setting out situations where a claim along these lines may arise.
The Civil team at Becket Chambers provides representation and advice in all areas of landlord and tenant law and accepts instructions from all parties to housing disrepair proceedings. If you require advice or assistance with a landlord and tenant matter, do not hesitate to contact our team at email@example.com.
Please note, Becket Chambers are planning to host a new series of webinars in the upcoming months, with housing disrepair being one of the chosen topics. If you are interested in attending this event (or would like further information on the topics we will be covering), contact us again at firstname.lastname@example.org.