Summary
In the second of two articles, I look at housing disrepair claims brought under the Defective Premises Act 1972 (DPA 1972).
A Brief History
The liability of landlords for failing to safely maintain premises has steadily increased in scope in the past century by way of parliamentary intervention. A landlord has historically not been liable to the tenant or third parties (i.e. visitors) for injuries suffered due to the condition of the let premises at common law (Cavalier v Pope [1906] AC 428).
However, intervention firstly came via Occupier’s Liability Act 1957 section 4, where in essence a landlord owed a common duty of care to visitors or those who had goods on the premises where the landlord was under an obligation to repair the premises. Due to the practical constraints of the tenant (not the visitor) being required to give the landlord notice of the relevant defect, this in turn was repealed by DPA 1972 section 4.
DPA 1972 section 4 extended the protected persons category to all those who should have been in the landlord’s contemplation as likely to suffer injury because of the landlord’s failure to repair. Section 4 also extended the landlord’s liability from cases where they had an obligation to repair to also include those where they only had a right to repair.
DPA 1972
Starting with the duty of care itself, DPA 1972 section 4(1) sets out the following:
• “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.”
An obligation to repair can be imposed on a landlord either expressly or by way of an express or implied right to enter the premises to carry out maintenance or repair of the premises.
The duty arises if:
• The landlord knows (whether as the result of being notified by the tenant or otherwise); or
• If in all the circumstances they ought to have known of the relevant defect.
The scope of the duty is whether the landlord took such care as is reasonable in all the circumstances to see that the tenant (or anyone else who might be affected) is reasonably safe from personal injury or damage to property.
• “All the circumstances” is general and case-specific: for example, in Rogerson v Bolsover District Council [2019] EWCA Civ 226 it was ruled that the landlord was liable for injuries caused by inadequate inspections of the tenant’s garden.
“Relevant defect” is vaguely defined as: “a defect in the state of the premises existing at or after the material time and arising 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”, with each alleged defect needing to be considered on a case-by-case basis.
• For example, the landlord’s duty is limited to the need to repair and maintain a part of the premises, not to make it safe (Alker v Collingwood Housing Association [2007] EWCA Civ 343).
“Material time” means the earliest out of the following: when the tenancy commences; when the tenancy agreement is entered into; or when possession is taken control of the premises in contemplation of the letting (if the tenancy was entered into before the commencement of DPA 1972, then the material time will be the commencement of the Act itself).
In essence, under DPA 1972 a claimant needs to show that:
• There was a relevant defect in the premises (i.e. a part of the premises that needed repair);
• That the landlord knew, or should have known, about the defect; and
• That in all the circumstances of the case, the landlord failed to take reasonable care to ensure the claimant was reasonably safe from injury or damage to property caused by the relevant defect.
“Notice” and Harry v Sykes and another
As stated in my previous article on this topic, although there are some similarities between claims brought under Landlord and Tenant Act 1985 (LTA 1985) and DPA 1972 an important distinction concerns the landlord’s required knowledge of the relevant defect.
In Harry v Sykes and another [2001] QB 1014, the tenant suffered brain damage due to carbon monoxide poisoning caused by emissions from a defective gas fire in the premises let to them by the defendant landlord. They brought an action for damages, relying on DPA 1972 section 4(1). It was initially ruled that the landlord was not in breach of their statutory duty as they did not have actual or “constructive notice” of the specific defects of the gas fire itself, with the Court relying on O’Brien v Robinson [1973] AC 912 at first instance.
The claimant’s appeal to the Court of Appeal was allowed. In contrast to the requirement for actual or constructive notice to have been given to the landlord in claims under LTA 1985, it was ruled that the claimant was relieved of that obligation in claims under DPA 1972. The Court ruled that it simply had to be shown that there was a failure on the part of the landlord to “take such care as is reasonable in all the circumstances” to see that the claimant is reasonably safe from personal injury, with this duty being owed if the landlord “ought in all the circumstances” to have known of the relevant defect.
Other factors
If the claimant can establish that the landlord should have known about the relevant defect and failed to take reasonable care to ensure the claimant was reasonably safe from injury or damage to property, it is still incumbent on the claimant to establish causation due to the landlord’s breach, with Townsend v Achilleas [2001] All ER (D) 221 (Oct) providing useful guidance on this point.
Also, despite the provisions above removing the requirement for the tenant to put the landlord on notice, there is still scope for damages claimed to be reduced by way of contributory negligence if the tenant fails to carry out the repairs themselves or bring the relevant defect to the attention of the landlord (as they are usually best placed to do both).
Conclusion
I hope that my articles on this area of law have provided a useful introduction to the topic of housing disrepair claims. In practice, many claims encompass both LTA 1985 and DPA 1972 principles and the detail of each will need to be delved into (especially when looking at each alleged defect or item of disrepair in turn).
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 clerks@becket-chambers.co.uk.
