UK: What You (Reasonably) Don't Know Won't Hurt You - Liability For Landlords For Defective Premises

Last Updated: 7 July 2016
Article by Erina Pieri

Lafferty v Newark & Sherwood DC (2016) EWHC 320 (QB)

Summary

In the case of Lafferty v Newark & Sherwood DC, the Court confirmed that landlords cannot be liable under the Defective Premises Act 1972 for damages caused by subsidence or sink holes where the landlords had no reasonable possibility of knowing of the potential defect.

The Court held that, although the faulty drainage was a 'relevant defect', as the problem with the drainage could not have been discovered on reasonable inspection, it was a latent defect. Therefore, the Landlord did not owe a duty of care to the Tenant.

The key points to note in light of the Court's decision are as follows:

  • If a landlord, following reasonable inspection of its property, has knowledge of a defect to the property, the landlord could be liable for any injury caused as a result of the defect.
  • Landlords must take immediate action if defects are found at their property to avoid any potential injury which could be caused.
  • Landlords should take detailed records of any inspections carried out at their property as such information would be useful in building a defence, should a claim for damages from their tenants arise as a result of injury caused by a relevant defect.

The facts

Robina Lafferty was the Tenant of a property in Ollerton (the "Tenant"). Newark & Sherwood District Council was the Landlord (the "Landlord").

In 2010, the Tenant was hanging up laundry in the garden when a hole suddenly opened up in the ground. The Tenant fell into the hole and sustained injuries that would have been assessed at Ł12,000 of damages, subject to liability.

The most likely cause of the hole in the ground was as a result of a fractured underground drainpipe that had led to erosion of the soil causing a void underground.

There were no external signs or warnings of this potential problem and no reasonable inspection of the garden could have discovered the void underground. However, the Tenant sought to recover from the Landlord the damages she incurred due to her injuries.

The Defective Premises Act 1972 ("DPA")

The Tenant attempted to rely on section 4 of the DPA to establish the Landlord's liability.

The DPA applies where the landlord has an obligation to repair or maintain the property. Section 4(1) of the DPA imposes a duty of care on landlords to ensure users of their property are reasonably safe from personal injury attributable to a relevant defect. Pursuant to section 4(2) of the DPA, the duty of care is owed if the landlord knows, or if he ought in all the circumstances to have known, of the relevant defect.

Under section 4(3), the DPA defines a 'relevant defect' as follows:

  • 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; and
  • which constitutes, or would have constituted (if the landlord had notice of the defect), a failure to carry out the landlord's obligation to maintain or repair the premises.

Section 4(4) of the DPA treats the landlord as having an obligation to repair, even if the lease is silent, in cases where the landlord has rights of entry to inspect. Section 4(4) can be summarised as follows:

Where premises are let under a tenancy which expressly or impliedly gives the landlord the right to enter the premises to carry out any maintenance or repair works, then, the landlord will be treated, as if he were under an obligation to the tenant to maintain or repair the premises; the landlord will not owe the tenant any duty in respect of any defect arising from, or continuing because of, a failure to carry out an obligation expressly imposed on the tenant by the tenancy.

The decision

It was held in this case that the faulty drainage was a 'relevant defect' for the purpose of section 4(3) of the DPA. However, as it could not have been discovered on reasonable inspection, it was a latent defect (i.e. a relevant defect which the landlord could not have reasonably had notice of). Therefore, section 4(2) of the DPA was not engaged and the Landlord did not owe a duty of care to the Tenant.

The Tenant's claim was based on an argument that section 4(4) of the DPA imposes strict liability on landlords for any injury, regardless of whether or not the landlord had notice of the defect. Applying such an argument would result in the Landlord being liable to the Tenant for damages, even though the Landlord did not have notice, and could not on a reasonable inspection have had notice, of the defect.

The Court did not accept the Tenant's argument and, instead, held that the duty of care which arises under section 4(4) of the DPA, as a result of a landlord having a right to enter to repair a premises, is the same duty as applies under section 4(1) of the DPA where the landlord has an express or implied obligation to repair. Therefore, the Landlord's liability was limited to matters which fell within the meaning of 'repair' and did not extend to strict liability.

Our comments

Landlords may be liable to tenants under statute such as the DPA, the terms of the lease or at common law. This case clarifies the position that landlords cannot be liable under the DPA where the landlords had no reasonable possibility of knowing of the potential defect.

Accordingly, this decision is helpful for landlords because, although the DPA imposes a duty of care on landlords, this duty of care is limited to landlords having knowledge of the defect i.e. by their being visible signs of the potential problem on reasonable inspection.

Consequently, if a landlord, following reasonable inspection of its property, would have knowledge of a defect, the landlord could be liable for any personal injury caused as a result of the defect in the property. Therefore, landlords ought to take action immediately if defects are found at their property to avoid any potential injury which could be caused. Further, landlords ought to take accurate and detailed records of any inspections carried out at their property as it is likely that the level of inspection carried out would be scrutinised if a tenant makes a claim for damages as a result of an injury caused due to a relevant defect.

This case also follows the Court's thinking in the case of Drysdale v Hedges [2012] EWHC B20 (QB) where the landlord was not liable to pay damages to a tenant who had slipped on painted steps. In the Drysdale case, the Court held that the landlord had not acted unreasonably in choosing to paint the steps and therefore had not breached any duty of care to the tenant. Please click here to view our previous article on this case.

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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