The complex law surrounding property condition and disrepair

by Tessa Shepperson

A week ago

The complex law surrounding property condition and disrepair

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The complex law surrounding property condition and disrepair

This is the 12th post in my 2017 Legal Update series.

One of the chief complaints made by tenants against landlords is the poor condition of their rented property and the difficulties they face in getting anything done about it.

And one of the chief problems for both landlords and tenants is the multiplicity of laws relating to this area – which makes this whole topic difficult and confusing. Although basically the laws fall into two types:

  • Those based on the civil law, and
  • Those based on the criminal law

The difference between the two is that

  • For civil law breaches a tenant can sue for an injunction to get the work done and claim compensation.
  • Criminal law breaches are not normally enforced by tenants (although this is possible for some claims for example claims under the Environmental Protection Act 1990). In practice, these laws are mostly enforced by local authorities (NOT as a rule the Police) ultimately by bringing a prosecution in the Magistrates Courts. Although as we saw in this post there are a number of other things they can do now too.

The Civil Law and Disrepair

This is basically the statutory repairing obligations set out in section 11 of the Landlord & Tenant Act 1985 plus whatever you promise to do in your tenancy agreement.

S11 basically says that landlords are responsible for keeping in repair

  • The structure and exterior of the property (including drains, gutters and external pipes) and
  • The installations for the supply of gas, electricity, water and sanitation and
  • The installations for space and water heating

Note that the rules are basically about things going wrong or being ‘broken’. A tenant has no right to request a court to order that something be improved. Even if that would be the better solution.

So, landlords can only be ordered to repair leaky roofs, not replace them. And to repair broken windows rather than replace them with double glazing.

The procedure for bringing these claims, for a tenant, is not easy and they have to first comply with the Pre-Action Protocol for Disrepair claims. However, it is something which many solicitor’s firms are offering ‘no win no fee’ agreements to tenants for, although this is mainly for tenants of social housing, not those in the private sector (yet).

Criminal law and the HHSRS

The starting point here is generally when the Council sends out an Environmental Health Officer (EHO) to do a Housing Health and Safety Rating System Inspection of properties (HHSRS) – usually when tenants contact them to complain.

As part of this exercise the property is assessed against 29 hazards – for example excess cold, damp and mould, fire, and excess heat. If this inspection throws up a ‘category one’ hazard then the Local Authority have a duty to do something about it.

What they will generally do is contact the landlord and ask them to sort the issues out, then serve an improvement notice if this is not done.

The next stage, if the work was still not done, used to be prosecution in the Magistrates Court. However, as we saw in my earlier post in this series, Local Authorities now have additional powers to serve Civil Penalty notices and also to apply for Rent Repayment Orders – if landlords fail to comply with Improvement Notices. When Banning Orders come in, this will be another option.

So, you need to make sure you are compliant.

This is a legal update series, I am a housing lawyer and don’t have the practical knowledge to be able to tell you, for example, how to configure your boiler or comply with Building regs. However, the HHSRS is a health and safety standard. Therefore, so long as you comply with all health and safety requirements, use properly qualified contractors, and try actively to ensure that your properties are safe, you should be OK.

To be able to prove this if challenged by the authorities you need to keep records – for example:

  • Receipts for work done and any certifications
  • Receipts for furniture, fixtures and fittings. New furniture sold by a reputable company for example must comply with the furniture regs or it cannot be sold.
  • Records of any work such as PAT certificates that may be obtained in respect of your appliances
  • Photographs showing your property in good condition – for example as part of your inventory.

Most landlords are proud of their properties and take care to keep them in good condition. If this is you, you should have little to fear.

Further information:

We did not have any talks at our 2017 Conference on these topics. However, recordings of Peter Marcus’ talk on Disrepair and Giles Peaker’s talk on the HHSRS from our 2016 Conference in Manchester, are both available as ‘bonus’ items in our 2017 Conference Course.

You will find more information about the Conference Course here.  There is a discount voucher for Property118 readers which is pp118cc30 – apply this on the checkout page and it will reduce the payment by 30%.  Note however that the coupon will expire after 16 September.

Peter also did a day’s workshop for us on Landlords Repairing Obligations last November which was filmed and this is now an online course and available as part of our Summer Training courses. It carries 4 hours CPD.

In this talk Peter looks mainly at landlords contractual repairing obligations (in s11 onwards in the Landlord & Tenant Act 1985) and the court processes you need to follow both to bring and defend a disrepair claim. However, he also considers landlords obligations under their tenancy agreements, the Defective Premises Act 1972, private and statutory nuisance claims and the Gas Regulations.

You can find out more about this online course here plus you will find a short video here.

There is also a certain amount of information on my Landlord Law site plus members can always ask me questions in the members forum.

You can find out more about Landlord Law here

The next post will be on HMOs.

Tessa Shepperson is a specialist landlord & tenant lawyer and runs the popular Landlord Law online information service.

To see all the articles in my series please Click Here

Comments

Fiona Elwell

A week ago

Where does the law stand on tenants who have made a complaint against the landlord for things that they said they would do ie. Put back the smoke detectors they removed.? Whilst the house is also being destroyed by a dog that is not supposed to be there. Neglect of my property and wilful damage, and yet the law says I must keep picking up the bills?

S11(2)(a) says that the landlord is not required

"to carry out works or repairs for which the lessee is liable by virtue of his duty to use the premises in a tenant-like manner, or would be so liable but for an express covenant on his part,"

Meaning basically that if the damage is down to the tenant you are not under any obligation to do the repairs. If you do decide to do it, the cost is something you should be entitled to recover from the deposit (subject to what your tenancy agreement says).

However, you need to have proof so

- Have an inventory prepared by an independent 3rd party and signed by the tenants when they go in which confirms that the smoke detectors were there at the start of the tenancy
- Get photographs/a video record of the dog and/or a witness statement from neighbours confirming that they are keeping a dog
- etc, etc

Keeping proper records including video and photographs is vital though, otherwise, it is just your word against theirs.

Rodney Oliver

A week ago

I'm considering not using written contracts anymore as they're simply not worth the paper they're written on. Tenants just do what they like and seldom ask any permissions. My latest, tenant insisted on signing up for a year but left after a month, left most of his furniture, now wants full deposit back in spite it'll cost me £££s to have old furniture removed. The agents wants something in writing and signed by tenant and l/Lord before they'll release deposit so tenant wants it out of my own pocket but I can't recoup without the tenants signature! It's ongoing, as I say, not worth the paper it's written on plus deposit pretty useless too!

I wouldn't recommend letting without a tenancy agreement as there are many ways that a tenancy agreement can protect a landlords position.

However, as you say, if your tenant takes no notice of it and ignores its provisions then you will have problems.

This is why it is of ABSOLUTE CRITICAL IMPORTANCE to take care in your choice of tenant and to try to choose someone who will respect your property and the tenancy agreement that they have signed. The importance of this cannot be overstated.

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