The landlord's responsibilities

The landlord has extensive duties to do repairs. These duties arise from a number of sources:-

• the tenancy agreement

• section 11 of the Landlord and Tenant Act 1985

• duty of care (breach of which may cause actions for nuisance and negligence)

• other responsibilities given by statute

• Defective Premises Act 1972

• Environmental Protection Act 1990. The landlord is responsible for a statutory nuisance caused by something inherent in the structure of the property.

The landlord may be responsible to carry out the repair under one or more of the above headings. More than one course of action can be taken to deal with a problem of disrepair and you will need to decide which is (or are) the most appropriate for the client before starting to take action.

The tenancy agreement

Express terms

If there is a written tenancy agreement, there may be terms relating specifically to the landlord's obligation to repair. If there is no written agreement, what has been agreed orally will be legally binding, although this will be more difficult to prove.

An express term, either written or oral, cannot remove a landlord's statutory obligations to do repairs, nor shift the landlord's statutory responsibilities onto the tenant. However, if the landlord agrees in the tenancy agreement to take more responsibility than is imposed on her/him by statute, s/he will be contractually bound by this.

A court can interpret what an express term means and what it applies to, looking at all the circumstances of the case. For example, the Court of Appeal found that the failure of a local authority to provide proper insulation for a flat, so as to prevent severe mould caused by condensation, was a breach of an express term in the tenancy agreement. The term stated that the landlord would 'maintain the dwelling in good condition and repair'. This may be a useful argument when challenging a landlord over who is responsible for condensation, but check the wording in the tenancy agreement carefully.

Implied terms

Implied terms are terms that can be read into a tenancy agreement even though they have not been stated. These may come from common law or, more importantly, from statute.

Common law implied terms Under common law the landlord has a number of repairing responsibilities, for example:-

• where the accommodation is let furnished, it must be 'fit to be lived in' on the day the letting begins, even if the unfitness is not obvious at the time of the letting but comes to light during the tenancy. The courts have decided that properties are not fit for human habitation at common law if they have bug infestation, defective drainage or sewage systems, a lack of safety or an insufficient water supply

• if the accommodation is let on a licence, it must be fit to be lived in, irrespective of whether it is furnished or unfurnished

• even if the letting is for a very short period of time, the landlord is liable to maintain the structure or exterior of the property at least to prevent a dangerous state of disrepair, unless there is an express term to the contrary in the tenancy agreement

• where a tenant is obliged under an express term of a tenancy to carry out repairs to the interior of the property, the courts have imposed an implied term that the landlord must repair the exterior.

Section 11 of the Landlord and Tenant Act 1985: the landlord's main obligation to repair

Section 11 of the Landlord and Tenant Act 1985 is the most important of the landlord's obligations to carry out basic repairs. It works by implying terms into a tenancy agreement (whether or not a tenant has anything in writing) which cannot be overridden by any express terms. The landlord therefore cannot seek to avoid, or to contract out of, these obligations.

When does section 11 apply

Section 11 will apply to most tenancies, whether in the private or public sector. It applies to all periodic tenancies and fixed term leases of less than seven years which began after 24 October 1961. The main exceptions are the following:-

• agricultural tenancies covered by the Agricultural Holdings Act 1948

• most business tenancies

• crown tenancies, that is, most tenants of government departments.

Tenants who do not come under the scope of section 11 may be able to have a repair carried out under one or more of the landlord's other responsibilities, including the terms implied by common law.

The landlord's obligations under section 11

The landlord must:-

• keep in repair (see below) the structure and exterior of the building or part of a building which is let to the tenant (including drains, gutters and external pipes)

• keep in repair and proper working order the installations for the supply of water, gas and electricity, and for sanitation (including basins, sinks, baths, toilets)

• keep in repair and proper working order the installations for space heating and heating water.

Keep in repair This is a continuing obligation to keep up the standard of repair throughout the tenancy. It also means that the landlord has to put into repair the structure and exterior of the property, even if it was not in good repair at the beginning of the tenancy.

Repair

The landlord's obligation to repair only comes into operation when there has been damage to the structure and/or exterior which requires it is made good. The landlord is therefore obliged to put right something that has gone wrong, or which does not work in the way it was intended to work. The landlord's obligation under section 11 can also cover putting right a defect that results from an inherent or design fault, for example, replacing a damproof course which had been laid in such a way as to cause dampness; providing a WC cistern; replacing missing expansion joints; or underpinning where there is subsidence. Whether the landlord has to provide a different thing from that which was originally contracted for will depend upon the individual circumstances of the case. Relevant factors may include what proportion of the premises are affected, the cost of the works and the age of the property.

Structure and exterior

There is no precise legal definition of this. The structure includes outside walls and windows, frames, ceilings, roof and foundations. It can be argued that it also includes external doors and windows, including the glass. If the landlord disputes that this is the case, specialist advice may be needed. It does not include internal wall plaster or decorations as such, but if these are affected by disrepair to something for which the landlord is responsible under this section, for example, disrepair to an external wall leading to penetrating damp, the tenant may be able to use section 11. The exterior of the building means the outside or external parts of the dwelling.

Common parts

The landlord is responsible, under section 11, for the structure and exterior of the building or part of the building which is let to the tenant wholly or mainly as a private residence. If the tenancy, however, began on or after 15 January 1989, and if the disrepair affects the tenant's enjoyment of her/his property or of the common parts, the landlord must repair the structure and interior of any part of the building s/he owns.

Installations for the supply of electricity, water and gas and for space and water heating

The landlord is obliged both to put these installations in proper working order, and to keep them in proper working order. In one case, it was decided that, to be in proper working order, an installation must be capable of carrying out its functions under all conditions it is 'reasonable to anticipate'. The installations covered include water and gas pipes, electrical wiring, water tanks, boilers, radiators, and other space and water heating installations, for example, vents for underfloor heating. The landlord does not, under section 11, have an obligation to keep in repair other installations which use electricity, water or gas, for example, a washing machine or fixed heater. However, the landlord may have other obligations in relation to these.

Landlord's right of access to inspect the premises

The landlord or her/his authorised agent has the right to enter the accommodation to inspect its condition and state of repair at reasonable times of day and at 24 hours' written notice.

When do obligations under section 11 arise

The landlord's obligation to repair under section 11 does not arise until s/he has notice of the disrepair. S/he must then be given a reasonable time to carry out the repair. There is no definition of reasonable time, but a number of factors should be taken into account, including the extent of the disrepair, whether or not the tenant is living in the property and the availability of replacement parts. For public sector landlords, published targets may be a relevant factor.

Standards for repairs under section 11

The standard required will take into account the age, character and prospective life of the property and the area in which it is located. This means that the repair does not necessarily have to put the property into a perfect state. However, the repair must, at the very least, make the property fit for occupation.

Landlords' responsibilities under the Defective Premises Act 1972

The landlord has an obligation under the Defective Premises Act 1972 to carry out work safely and properly, and is liable for any damage or injury resulting from disrepair.

Negligence and nuisance

A landlord can be taken to court for negligence or nuisance. Negligence arises if someone has been injured or property has been damaged because the landlord has breached a duty of care. A duty of care is likely to be breached if the landlord has acted unreasonably or has not acted where s/he should have, and the problem was 'reasonably foreseeable'.

Nuisance occurs when something in one property interferes with the use and enjoyment of a neighbouring property. Nuisance could occur, for example, as a result of defects in the common parts of a property or in neighbouring premises owned by the landlord. Noise from neighbours could also constitute nuisance.

Other responsibilities of landlords

Landlords also have specific responsibilities in respect of gas and electrical safety, fire safety, furnishings, asbestos, refuse and vermin.

Taking action to deal with disrepair

Before taking action - steps to follow

Step one - check your housing status

Before taking any action on repairs, the your housing status should be established. This is because, unless the tenant has security of tenure, the risk of losing the accommodation may outweigh the advantages of taking action, and the course of action will depend on the level of security of tenure. If you do not have security of tenureyou should seek help of a specialist housing adviser.

Step two - check the tenancy agreement

If the you have a written agreement, check it to see who it says has responsibility for the repair. Remember that the tenancy agreement cannot take away statutory rights and obligations. It may, however, give you the rights over and above her/his statutory rights.

If there is no written agreement, terms implied by common law and statute will still apply, as well as anything that was agreed orally. Assured shorthold tenants whose tenancies began on or after 28 February 1997 have a right to a written statement of the main terms of the tenancy.

Step three - Notify the landlord

If the landlord is responsible for doing the repair, you must first make sure that you give the landlord reasonable notice that the repair is needed. You should put your request in writing and keep a copy.

What 'reasonable notice' is depends on the individual situation, for example, the scale of the work and the effect the disrepair is having on the tenant.

Step four - collect evidence of the disrepair

You should make a written description of the disrepair and collect the following evidence:-

• proof of when the landlord was notified of the problem, for example, a copy of a letter

• photographs

• expert evidence, for example, from surveyors or environmental health officers

• medical reports, if the disrepair is affecting the health (including stress) of the tenant

• details of any costs incurred as a result of the disrepair.

You will need detailed evidence.

Step 5 - consider the options for action

Negotiating with the landlord

If possible, you should first negotiate with the landlord to try and get her/him to undertake the repair in accordance with her/his responsibilities.

Alternatively, you could pay for and undertake the work yourself, if the landlord agrees.

If the local authority is the landlord, it may be worth checking whether the authority has included the work within its planned maintenance programme and intends to carry it out in the near future.

If negotiation fails

If negotiation fails, you could take one or more of the following courses of action:-

• use the rent to pay for repairs. Remember that this is a risky course of action, unless the correct procedure is carefully followed. You must not simply withhold rent

• take court action yourself

• get the local authority to take action

• if you are the tenant of a local authority or of a registered social landlord, claim compensation under the 'right to repair' scheme

• contact an ombudsman

• if the problem relates to electricity, gas or fire safety, contact the appropriate body

• consider eligibility for a housing grant, loan or other type of assistance for repairs or improvements.

Tenant carrying out and paying for improvements

If the landlord refuses permission, s/he has to give her/his reasons in writing. The tenant can challenge the refusal in the county court, where it will be the landlord's responsibility to prove that s/he is being reasonable in refusing permission.

Using the rent to pay for the repair

You do not generally have the right to withhold rent, and should not do this in an attempt to force the landlord to do repairs. Doing so could jeopardise your right to remain in the property because the landlord can start possession proceedings on the basis of rent arrears.

Notwithstanding the above warning, in certain circumstances you can use rent money to pay for repairs, or offset the cost of repairs you have carried out her/himself against rent arrears. The tenant must follow the correct procedure

A case (Lee-Parker v Izzet (1971) 1 WLR 1688) has established that, to use rent to pay for repairs, or to offset the cost of repairs against arrears, the tenant must carefully follow (in order) the steps below:-

• give the landlord notice of the disrepair and a reasonable time to remedy it; then

• inform the landlord (preferably in writing) that you will do the repair yourself unless the landlord complies with her/his obligations; then

• allow a further reasonable period for the landlord to do the work; then

• obtain three estimates for the cost of the work from reputable builders; then

• write to the landlord again, enclosing copies of the estimates and reminding her/him of her/his obligation to do the work, giving a further reasonable period to carry it out. The letter should warn that, otherwise, you will do the work yourself and deduct the cost from rent; then, if there is no response

• arrange for the contractor who gave the lowest estimate to do the work, and obtain (and send to the landlord) receipts, with a request for payment; then

• if the landlord does not pay, you may deduct the cost from the rent (but not other charges such as service charges), then send the landlord a breakdown of the amount and period of the rent to be withheld.

The tenant should avoid running into rent arrears before taking this action. If, however, the landlord takes court action for arrears and/or possession, the fact that the tenant has had to pay for repairs can be used as a counterclaim to the proceedings. Damages caused by the landlord's default can also be set off against arrears in a defence to possession proceedings. Specialist advice will be needed.

Tenant taking court action

Taking court action against the landlord for breach of a duty to repair is complicated. It can be costly and time consuming. The tenant should be advised to negotiate with the landlord if possible. Court action should be used only as a last resort.