Remaining alive to landlord and tenant issues

Alec Samuels considers disrepair, and notice of disrepair, issues in landlord and tenant disputes

The landlord 'L' lets a block of flats to tenants; and he may or may not live in one of the flats himself. Problems arise. The roof of the block starts to leak. One of the flats is in a poor state. One of the steps on the common staircase becomes defective. The lift stops working. The floor in the common entrance hall becomes slippery. The outside path leading from the car park to the entrance hall becomes uneven. As a result a tenant 'T' or a visitor 'C' falls down or is otherwise injured. Did the landlord know? Is L liable?

One imagines that the answer would be fairly simple and straightforward. The common law, the statutory repairing obligations for short leases for a term of less than seven years under section 11 of the Landlord and Tenant Act 1985 (which are overriding section 12), and the terms of the lease itself should provide the answers. However, such matters still come before the judges, even the justices of the Supreme Court, such as in the case of Edwards v Kumarasamy [2016] UKSC 40, [2016] 3 WLR 310.

Implied covenants

There is an implied covenant by the landlord that he will keep in repair the structure and exterior (including drains, gutters, and external pipes) and keep in repair and proper working order (O'Connor v Old Etonian Housing Association [2002] EWCA Civ 150, [2002] 2 All ER 1015, [2002] Ch 295) the installations for the supply of water, gas and electricity, and for sanitation (including basins, sinks, baths, and sanitary conveniences, but not other fixtures, fittings and appliances for making use of the supply of water, gas or electricity) and keep in repair and proper working order the installations for space heating and heating water. The standard of repair required calls for regard to the age, character, and prospective life of the dwelling and the locality.

The flat

Normally the express and implied covenants to keep in repair cast the obligation in respect of the structure and exterior upon L and the obligation in respect of the interior upon T. Subject perhaps to the need or desirability of expert evidence, drawing the dividing line between the obligations of L and of T is relatively easy.

The roof of the block

Although the roof impinges directly only upon the top floor flats so in one sense is not the exterior of the lower floor flats, nonetheless a leaking roof could lead to water penetration in any or indeed all of the flats, so represents the exterior for all the flats, and is the responsibility of L (Campden Hill Towers v Gardner [1977] QB 823, [1977] 1 All ER 739, CA).

The problem is the flat next door

The problem is the wall or the floor between T's flat and the flat next door or above, the wall or floor being exterior to T. The problem is brought to the attention of L, who says he cannot do anything because the tenant next door or above will not let him in. Having covenanted over the exterior with T this argument cannot absolve L. The landlord must somehow get the problem with the tenant next door or above sorted.

Tenant must give landlord notice

If T is calling upon L to remedy a breach of covenant, such as defective installations in the flat, then the landlord must give notice to the tenant. After all, T has exclusive possession of the flat, he has peculiar knowledge of the state of the interior, it is obvious and necessary for business efficacy that T must give an otherwise ignorant L notice of the defect (see Edwards).

Having received notice, L is then entitled to a reasonable time in which to effect the necessary repairs.

Disrepair and discernible

Suppose that the disrepair is not discernible, it is latent. Presumably nothing will happen until the disrepair is in fact discovered, e.g. by survey, or inspection, or mishap, the disrepair manifests itself, the pipe bursts or the ceiling falls in or whatever. Then, when the matter comes to his attention, T must give notice to L (see O'Brien v Robinson [1973] AC 912, 926 D-F, 930E, [1973] 1 All ER583). The latent disrepair may be in an adjoining flat occupied by another tenant of the landlord.

Landlord's right to enter and inspect

For some reason T did not give notice to L of a breach of covenant, but argues that L has a right under the lease to enter and inspect for the purpose of viewing the condition and state of repair and to execute repairs for which he is liable, and if L had exercised that right he would have discovered the facts and would have had notice. It is submitted that the fact that L could or might have discovered the breach by other means does not absolve T from his obligation to give notice to L.

The common parts of the block

An express or implied covenant is a sort of warranty or guarantee and, therefore, applies whether the landlord has notice of any breach or not, subject always to any contractual modification in the lease. So, L retains possession of the common parts, the stairways, the lift, the entrance hall, and is liable for disrepair whether or not he has notice. He must inspect and maintain.

The outside, the curtilage, the yard, the garden

The statutory implied obligations apply only to the block, the building, and not to the outside, the curtilage, the yard, the garden. The lease may say something about liability upon the landlord, or may not. The tenant may well be concerned about the surrounding environment, and safety, so may wish to see an appropriate obligation upon the landlord; and L may wish to protect himself by requiring notice in the lease (see Edwards).

The steps down to the basement may well be the essential and only access to the flat in the basement, but outside steps leading to the front door are not part of the exterior of the building and therefore not covered by any obligations relating to the building or its exterior (see Edwards paras 20-21).

Tiers of interests

The landlord may be the freeholder, or he may be the head lessor, but in principle the law applies down the line, however many tiers there may be. Though complications could arise where the freeholder retains his rights over the common parts, giving the head lessor only a right of way over the common parts (though still a landlord's interest), in which case the head lessor should seek to restrict his liability to any tenant except on explicit notice of the defect.

So far as possible and lawful, the landlord will wish to limit his liability to when he has notice. He will also wish to transfer liability or to seek indemnity for any liability falling on him from the freeholder.

Occupiers' Liability Act 1957

Being in occupation or control of the common parts of the block and the curtilage the landlord owes the common duty of care to visitors, invitees and those permitted to enter, to protect them from dangers due to the state of the premises and to make them reasonably safe.

The occupier has the defence that proper warning was given, or that the defect was due to properly supervised independent contractors, or that the claimant accepted the risks.

Furthermore the occupier can restrict, modify or exclude his liability section 2, and usually does so. For trespassers, see Occupiers' Liability act 1984.

Defective Premises Act 1972

The builder of dwellings owes a duty to do the work in a workmanlike manner or professional manner so that the dwelling is fit for habitation, or built in accordance with instructions, or with a warning of defects. Future owners of the dwelling enjoy the benefits of the legislation. The Limitation Acts apply. The secretary of state may exempt an approved scheme. However, the duty is not a covenant or warranty but the common law duty of care.

The well-drawn lease

All the issues discussed here have arisen over the years, have come before the judges, and are, or should be, well known to practitioners. The draftsman must be alive to all the issues, consider them, take instructions, negotiate from knowledge, settle and draft accordingly.

Alec Samuels is a barrister and former reader at Southampton University