UK: Learning The Law: Disrepair

Last Updated: 19 October 2018
Article by Adam Corbin and Nicholas Okonoboh

Repairing obligations are some of the most commonly disputed areas of Landlord and Tenant law. They usually arise by covenant contained in a lease, by implication, or by statute. We consider how to determine each party's responsibilities and the likely methods of enforcement.

Meaning of 'repair' and 'disrepair' Many disputes over repair require the parties to determine what constitutes 'repairs' and what constitutes 'renewal'. This is because express covenants, and some of the statutory overlay often distinguish between the two, and apply responsibility separately. Repair means the restoration by renewal or replacement of subsidiary parts of the whole; whereas renewal, as distinguished from repair, means the reconstruction of the whole (Lurcott v Wakeley [1911]).

The Common Law

Under common law a landlord is not liable for housing - or indeed any - defects, except in so far as expressly provided in the tenancy (Cavalier v Pope [1906]); the common law leaves parties to contract between themselves. Where a tenancy is silent as to repairs, the effect may be that neither party is technically liable to repair.

Statute

There are a number of exceptions to the common law position. Aside from the Court implying certain repairing terms into a tenancy on the evidence of the parties, various statutes have apportioned liability for disrepair.

Landlord & Tenant Act 1985

Section 8: Subject to certain exceptions this section provides that where a house is let for human habitation, two separate contractual terms are implied, which are absolute and non-excludable:

  • that the house will be kept by the landlord fit for human habitation at the commencement of the tenancy; and
  • an undertaking that the house will remain so during the tenancy.

Section 11: This section implies repairing obligations into:

  • all post 24th October 1961 tenancies of dwellings of less than seven years;
  • all secure and some assured tenancies granted after

1 April 2012 with a fixed term of seven years or more. Section 11 requires the landlord essentially to maintain the structure and exterior of the dwelling (including drains, gutters and pipes) in repair as well as to keep in proper working order the installations for the supply of water, electricity, gas, sanitation and for heating both space and water. The provisions only relate to maintenance and repair; they do not require the landlord to provide such installations where none exists or to upgrade installations which are considered inadequate or inefficient by modern standards. Section 11 does not apply to agricultural holdings, FBTs or business tenancies governed by the Landlord & Tenant Act 1954.It cannot be excluded, but it does take effect subject to the tenant's general obligation to use the premises in a tenant-like manner and not commit waste. As such, it usually remains the tenant obligation to repair damage caused by him.

Defective Premises Act 1972

Section 4 imposes a duty of care on a landlord who is responsible for the maintenance and repair of premises. That duty is owed to all persons who might reasonably be expected to be affected by defects in the state of the premises. It comprises a duty to take such care as is reasonable in all the circumstances to see that [those persons] are reasonably safe from personal injury or damage to their property caused by a relevant defect. This Act could be used by a tenant's visitors to claim against a landlord for injury caused by disrepair to the let premises, and applies to agricultural, business, and residential tenancies alike.

Agricultural Holdings Act 1986 (AHA 1986)

Section 7 AHA 1986 empowered the Minister to make Regulations prescribing terms as to the maintenance, repair and insurance of fixed equipment known as the "Model Clauses". The current Model Clauses in England are the Agriculture (Model Clauses for Fixed Equipment) (England) Regulations 2015, but sometimes the earlier 1973 or even 1948 Regulations will apply, depending upon the wording of the tenancy. The model clauses are incorporated into every contract of tenancy of an Agricultural Holding "except insofar as they would impose on the other parties to an agreement in writing a liability which under the agreement is imposed on the other" (s7(3) AHA 1986).

Agricultural Tenancies Act 1995 and Landlord and Tenant Act 1954

These two statutes are silent on repairs leaving the matter for negotiation between the parties.

Disrepair Claims

Litigating disrepair claims can be challenging, because there are different fora for resolving different types of disputes, each with different procedural rules depending on the cause of action. A landlord's objectives will usually be to force a tenant into doing repairs, or paying for them; a tenant's primary objectives will be the same, often with the additional aim of obtaining compensation for any losses caused by the landlord's disrepair. Where one party wants to compel the other to carry out repairs the Court can order "specific performance" by the other party of their obligations. Alternatively there may be a written provision allowing one party to execute the other party's repairs themselves and recover the costs as a debt from the defaulting party. Generally, a landlord will not be liable until he is given notice of a defect. The landlord will then have a reasonable period in which to remedy it before being in breach. A tenant is unlikely to recover damages for losses during this period, unless a landlord unreasonably delays once notified.

Amount of damages

The fundamental principle in awarding damages in disrepair cases is to put the tenant in the position in which he/she would have been had the breach not happened. A tenant who remains in occupation of premises in disrepair will often be entitled to a substantial award for inconvenience, disappointment, discomfort, mental distress and loss of enjoyment, as well as damages for any ill-health caused by the disrepair. This can be calculated by reference to the reduced rental value of the premises in disrepair. The tenant may also be able to recover loss of profit, provided it was contemplated that the premises would be used for the purpose of the business that has suffered the loss.

Terminal dilapidations

Landlords will often delay claims for disrepair until the end of a tenancy. This is termed as a claim for 'terminal dilapidations'. The Landlord and Tenant Act 1927, and the AHA 1986 contain provisions intended to limit the amount, which a landlord is able to recover for disrepair, to the actual diminution in value to the premises. These provisions are intended to prevent landlords from recovering damages based upon costs of repair, where the reality is that such repairs will not make a difference to the value of the premises.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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