Landlords’ Responsibilities for Repair and Maintenance

In addition to any repair responsibilities explicitly set out in the tenancy agreement, common law and statute will imply terms to the agreement between landlord and tenant. These terms form part of the contract, even though they have not explicitly been agreed upon between the parties.

Section 11 Landlord and Tenant Act 1985

Section 11 of the Landlord and Tenant Act 1985 makes it an implied term into tenancies of less than seven years that the landlord shall keep in repair:

  • the structure and exterior of the dwelling
  • the installations for the supply of water, gas, electricity and sanitation
  • the installations for the supply of space heating and, water heating, and
  • the communal areas and installations associated with the dwelling (section 11 as amended by section 116 of the Housing Act 1988), where the landlord controls these.

The Act also provides that the standard of repair necessary will vary depending on the 'age, character, and prospective life of the property and its location'.

The structure and exterior of the property include physical exterior walls, windows, and doors, but not paths to access the property or fences.

Further, a landlord's obligation extends to parts s/he may physically own and may include parts where there is a right of way. For example, suppose a landlord owns a flat within a block on a long lease and has a right of way along the hallway leading to the front door. In that case, the landlord will have a duty to repair the hallway even though s/he only has a right of way and does not own it (the freeholder in this example will own it).

Generally, the building and its immediate surroundings should withstand typical weather conditions and daily use by tenants and visitors.

The property should be reasonably internally and externally repaired and fit for human habitation. There should be no dampness, either rising or penetrating damp, from the outside. Condensation may result from the tenant's behaviour, but it may also affect the landlord if the ventilation is inadequate or some structural problem is causing it. An investigation of the cause will be needed to decide responsibility.

Statutory and common law requires that there should be no unacceptable risk to the health or safety of the occupiers or their visitors.

Remember that if the tenant or visitors have an accident or suffer injury due to the property's poor condition (for example, a fall caused by a broken handrail or respiratory diseases caused by damp conditions), the landlord may be liable to them for damages for personal injury.

Notice of the defect

As a general rule, where a defect appears within the boundaries of a tenancy (within the demise), a tenant must notify the landlord of any defect.

The landlord will not breach the repairing obligation until s/he has received notice of the defect and if works are completed within a 'reasonable' time.

This general rule does not apply to defects outside the dwelling, such as shared roofs or paths. A landlord is advised to inspect these parts regularly to determine whether they need repair.

It might be possible for a term in a tenancy agreement to require the tenant to provide notice where the defect is not within the demise.

Access to property

Section 11, sub-section (6) implies a term in the tenancy agreement that landlords with section 11 repairing responsibilities (or people authorised by them) have the right to access the property to view its condition and state of repair. Access can only be at reasonable times of the day and after giving the tenant not less than 24 hours notice in writing. This section does not extend to carrying out the repairs. Section 16 of the Housing Act 1988 implies a term into all assured and assured shorthold tenancies that the tenant will afford access for carrying out repairs and reasonable facilities for executing those repairs (such as electricity for drills, for example). In other types of tenancy, it will be an implied term that a landlord may enter to carry out repairs. However, the right to enter to do repairs (subject to notice being given) is generally included in tenancy agreements. Suppose the tenant refuses to allow the landlord access to carry out the repairs. In that case, the tenant cannot complain about the property or claim damages for disrepair or personal injury caused by the disrepair.

Indeed, suppose the tenant's failure to allow the landlord access to do the work results in further deterioration or damage to the property. In that case, the tenant may be liable to the landlord (entitling the landlord, for example, to deduct the additional costs incurred from the deposit).

Note: Although section 11(6) gives the landlord the right to enter the property (after being given notice), this does not mean the landlord is entitled to enter at that time, regardless of whether the tenant asks the landlord not to. However, if the appointment time is inconvenient, the tenant will be expected to consent to an appointment at another time.

If the tenant refuses to allow the landlord access, the tenant will breach their tenancy agreement. In some circumstances (for example, if the property is clearly in disrepair), this may entitle the landlord to apply for an order for possession.

Generally, landlords should be wary about entering the property when the tenant is not there. Where a tenant has given permission but has advised that they will not be at the property themselves, it is recommended that a witness accompany landlords/agents.

Breach of repair obligations

The landlord can pass on the cost of work or repairs to the tenant if work is needed because the tenant breaches their obligations under the tenancy.

The tenant can take action in the County Court for breaches of the landlord's repairing obligation. This is a civil action, and tenants can claim compensation for damage and inconvenience resulting from the breach.

The landlord should receive notice of this in advance of any claim brought, as tenants are now obliged to comply with the 'Pre-action Protocol for Housing Disrepair'. This protocol provides that tenants must inform their landlord in writing (an 'early notification letter' followed by a 'letter of claim') of all relevant matters before issuing legal proceedings. The protocol gives full details of the information and specimen letters. If the tenant does not comply with the protocol, the landlord can ask the court to stay the claim until the protocol's provisions have been complied with. You can download a copy of the protocol from the Justice website. The protocol does not apply if the tenant is counterclaiming against a landlord's claim (for rent arrears, for example).

Section 17 of the Landlord and Tenant Act 1985 requires specific performance (e.g., the landlord must repair) where there has been a breach; therefore, compensation may not be a sufficient remedy.

This means the County Court can order the landlord to fulfil the tenancy agreement's express or implied repairing terms. The County Court can make an injunction requiring the landlord to do repair work that may or may not be within the contract terms. If the landlord fails to carry out the works required by the court order, the landlord or his agent can, in extreme situations, be imprisoned for contempt. The County Court can alternatively direct the repairs undertaken by, or on behalf of, the tenant at the landlord's expense.

Damages (compensation) can still be claimed even if the work has already been carried out when the case reaches court.

In practice, it is rare for these extreme measures to be used. However, it is vital to be aware that these penalties exist, and you should make every care to respond promptly to repairing obligations when they arise. After all, it protects any financial investment, and if the property is appropriately insured, some work may be covered by the insurance policy.

Homes (Fitness for Human Habitation) Act 2018

For new tenancies, renewals and tenancies becoming periodic on or after 20 March 2019, the dwelling must be fit for human habitation both at commencement and throughout the tenancy. The rules also apply to all periodic tenancies before 20 March 2019 from 20 March 2020.

In determining whether a house or dwelling is unfit for human habitation, regard shall be had to its condition in respect of the following matters--

  • repair,
  • stability,
  • freedom from damp,
  • internal arrangement,
  • natural lighting,
  • ventilation,
  • water supply,
  • drainage and sanitary conveniences,
  • facilities for the preparation and cooking of food and the disposal of wastewater,
  • any of the 29 prescribed hazards found under the Housing Health and Safety Rating System (HHSRS), including electrics, fire, cold, and falls. For information about the 29 hazards, see next about HHSRS in this handbook.

The house or dwelling shall be regarded as unfit for human habitation if (and only if) it is so far defective in one or more of those matters that it is not reasonably suitable for occupation in that condition.

The landlord is not required to carry out works or repairs the tenant has caused by failing to use the premises in a tenant-like manner, rebuild after a fire, storm, flood, or other inevitable accident, or maintain anything the tenant is entitled to remove.

The obligations extend to the dwelling, and if it is part of a building (e.g., a block of flats or a bedsit in an HMO), the provisions also apply to all aspects of the building in which the landlord has an estate or interest.

Where works or repairs require the consent of a superior landlord or another third party, you must make reasonable endeavours to obtain the necessary permission.

Like repairing obligations, it's impossible to contract out of these provisions.

Further guidance

The government has published guidance about the Act for landlords, tenants and local authorities.

Appliances

There is no statutory requirement to supply appliances with a rented property. If appliances have been provided, repairing obligations are not governed by section 11 discussed above. Instead, the responsibility for repair depends on the type of letting and the terms of the tenancy agreement.

All appliances must be supplied safe at the beginning of the tenancy.

HMOs

Any fixtures, fittings, or appliances shared by two or more households within an HMO must be maintained in good, safe repair and clean working order. However, this doesn't apply if the occupier is entitled to remove the item or if it is otherwise outside the manager's control.

Not an HMO

For other lettings, the responsibility for repair will depend on the tenancy terms:

  • Where there is no term in the tenancy about repairing appliances, the landlord would typically be liable as they provided the appliance included with the rent.
  • A tenancy may contain a term that the landlord is not obligated to repair appliances (except where lawfully required, like an HMO). Even when such a term exists, many landlords would offer to fix it to keep good relations with the tenant unless it was clear the tenant had caused the damage.

Contracts with contractors

Before engaging a contractor to supply services, you should consider the following:

Is the contractor competent? This is partly tested by practice, but the contractor must be qualified in certain situations. The engineer must be Gas Safe Registered for gas work and qualified to the appropriate level for electrical work.

Is the contractor insured? What kind of insurance does the contractor hold, and is it current? Is the public liability element sufficient for the job or the site situation? The date of the renewal should be noted and checked annually.

Is the contractor safe? The landlord must address safety issues with the contractor before going on-site. In most cases, this will be straightforward. However, it becomes more complex if the job involves working from heights or the possible presence of asbestos. Where the contractor is a firm with five or more employees, the contractor must, by law, have a written and up-to-date Health and Safety Policy. If the property is occupied, the landlord must disclose anything around the occupancy that may present significant risks or issues to the contractor or team.

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