Beyond the Dwelling-House

The Landlord’s Repairing Obligation in Flats

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The Concept of the Dwelling-House in Section 11

Under section 11 of the Landlord and Tenant Act (1985), the landlord is obliged to keep in good repair and working order:
- the structure and exterior of the dwelling-house
- the installations in the dwelling-house for the supply of water, gas, electricity, and sanitation
- any installations in the dwelling-house for space heating and heating water

In the above, the term dwelling-house should be understood to mean the building or part of a building that is let to a tenant as their only or primary place of residence , and so in the original 1985 Act this is what the obligation applied to.

Flats: The Extended Repairing Obligation

Where the demised premises form only a part of a building, the tenant’s quiet enjoyment of it will not only be affected by that which lies within the confines of the dwelling-house but also by the building at large. For this reason, an amendment to section 11 – subsection 11(A) - came into force in January 1989 meaning that, for tenancies that began on or after this date, ‘the covenant extends to other parts of the building in which the dwelling-house is situated, provided that the building is also owned by the landlord.’ This means that the repairing obligation will also extend to common areas of a building, such as an entrance hall or stairwell.

It is important to note here that common parts that are not part of, or attached to, the building, are not covered by section 11 as was ruled by the Supreme Court in Edwards v Kumarasamy . They may, however, be covered by section 4 of the Defective Premises Act, or alternatively it is possible these would be covered by the terms set out in the tenancy agreement.

If the landlord does not have ‘an estate or interest’ in these communal parts – for example, if they fall outside of the leasehold – then the liability will not be with the landlord but, for example, the freeholder of the building overall or the third-party leaseholder responsible for the defective parts.

Whilst it is not always possible to have access to the tenancy agreement ahead of an inspection, where disrepair is identified in the common areas that has affected the tenant, and where it is reasonable to state an assumption in the Scott Schedule that the tenancy agreement was entered into after January 1989, then the Surveyor will schedule the associated disrepair.

[1] Jan Luba, Housing Conditions tenants’ Rights sixth edition (2019), 2.76, p97.

[1] Diane Astin, Housing Law Handbook Fourth Edition (2018), p627.

[1] Edwards v Kumarasamy [2016] UKSC 40.

Repair Obligations in the Tenancy Agreement

Section 11 of the Landlord and Tenant Act 1985 sets out the universal repairing obligations for landlords of all short lease tenancy agreements (with a few exceptions), namely, to keep in repair ‘the structure and exterior of the dwelling-house’, ‘the installations in the dwelling-house for the supply of water, gas and electricity and for sanitation’ and ‘the installations in the dwelling-house for space heating and heating water.’

Photo by Jay Clark on Unsplash

When it comes to preparing a housing disrepair expert witness report, section 11 provides the basic criteria for our inspection, however, it is important for us as expert witnesses to understand the nuances around the landlord’s contractual repairing obligations, and where breaches may arise. In particular, the wording of a tenancy agreement can generate additional repairing obligations on a Landlord, as Diane Astin puts it, some agreements ‘contain more generous repairing covenants’[1].

This can significantly increase the breadth of factors a Chartered Surveyor must consider when preparing a Housing Disrepair Expert Witness report. Case law has shown that a promise made in the tenancy agreement to keep the premises ‘in good condition’ or ‘fit to live in’[2] (for example) places obligations on the Landlord that are beyond the scope of section 11. Through such wording, issues such as condensation-related dampness and mould that are not covered by statute may be found to be the Landlord’s responsibility. This was the case in Welsh vs Greenwich LBC [2001], in

which the Landlord was held to have breached its express covenant to ‘maintain the dwelling in good condition and repair’ by not having provided appropriate insulation or dry-lining to prevent condensation-related damp and mould growth[3].

The contractual obligations contained in the Tenancy Agreement may also extend to the provision of services. In Long vs Southwark [2002]2, the Court of Appeal found that Southwark Council was in breach of a term stating that it would ‘take reasonable steps to keep the estate and common parts clean and tidy’ by failing to ensure the reliability of the contractors charged with collecting rubbish on one of its properties. For this reason, a copy of the Claimant’s Tenancy Agreement should be provided to the Instructed Expert wherever possible ahead of a Housing Conditions survey. This will allow them to assess the disrepair against both the implied and express terms of the contract during their inspection and prevent potential breaches being overlooked. Properly contextualising the claim in this way will allow all parties to get the most out of their Instructed Expert and increase the chance of a just outcome for both Landlord and Tenant.

[1] _{Diane Astin, Housing Law Handbook Fourth Edition (2018), p625-6.}

[2] _{Jan Luba, Housing Conditions Tenants’ Rights sixth edition (2019), p127.}

[3] _{isurv.com, Cases – Welsh v Greenwich London Borough Council, URL: https://www.isurv.com/directory_record/3551/welsh_v_greenwich_london_borough_council [Accessed: 05 October 2021]}

Housing Disrepair Cases On The Rise

Housing disrepair can become a serious problem when a landlord fails to maintain or carry out necessary repair works to their property. This has always been a significant housing issue however there has recently been a rise in the number of housing disrepair claims despite drastic cuts to Legal Aid since 2013.

Statistically, there has been a rise from 1,694 in 2011-12 to 2,440 in 2015-16. (Source: Public Law Today). Disrepair claims seem to be prominent in the social housing sector. BBC research points to the number of disrepair claims brought by tenants against councils in England – this has increased by 44% over the last 4 years. In total, the authorities paid out £35m in compensation and legal fees regarding properties deemed unfit. In February of this year 8 UK Housing Associations were downgraded as result of alleged breaches of repairing obligations and failing to meet the Homes and Communities Agencies (HCAs) value for money standard.

A report on housing disrepair by Andy Ballard states that ‘these are very difficult times and the number of claims is only likely to increase’.
This growth can be largely attributed to recent governmental cuts. Despite many landlords conforming to the Decent Homes Standard many years ago, many of these properties have fallen back into states of disrepair.

As well as a lack of government grants and cuts in revenues, there is a lack of funding in more environmentally friendly and efficient technology that could provide better insulation and ventilation in homes. This would prevent homes from falling into the poor quality bracket. Consequently, some tenants will withhold rent on the basis of disrepair which may be an alternative to paying rent and having to borrow off a pay day Loan Company.

Despite cuts to legal aid, there has been a rise of firms offering to represent clients on a ‘no win no fee’ basis. This increases the potential for disrepair cases to be heard.

In light of this, law firms that specialise in housing disrepair should ensure that an experienced surveyor is instructed as their chosen expert.