Landlords have a number of obligations in regard to residential property, some of which will be explicitly set out in the tenancy agreement, some of which are implied by common law and many of which are set out in various statutes. From a landlord’s point of view, it is important to understand your obligations under the tenancy to avoid unpleasant surprises. From a tenant’s point of view, you may be seeking legal advice in order to take action against your landlord for non-compliance. Our team of expert landlord and tenant lawyers is on hand to advise in either case.
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Section 11 of the Landlord and Tenant Act 1985 obliges the landlord of residential properties let for less than 7 years to keep them repaired. This applies to the structure of the dwelling, e.g. the exterior and interior walls and the roof, the floors and ceilings and the doors and windows, and also includes drains, gutters and external pipes. In the case of flats, the obligation may also extend to the common parts. The obligation is to keep these elements in repair, and does not include any obligation to make improvements. This can lead to some unexpected results: for example, a landlord is liable for damage caused by damp where a damp course has deteriorated, but is not liable for damage caused by damp where a damp course is completely absent. In cases where the landlord is unsure of his obligations under section 11, he should seek legal advice.
In addition, section 11 makes the landlord responsible for maintaining the gas and electricity supply and the plumbing in proper working order.
In most cases, a landlord’s obligation under section 11 only arises once the tenant has given the landlord notice of the fault, in which case the landlord must then repair it within a reasonable time.
For completeness, it should be added that it is possible to exclude statutory covenant under section 11 if the landlord and tenant together make an application to the court under section 15 of the Landlord and Tenant Act 1985. However, this is rarely done, for the obvious reason that the tenant will not normally accede to the application.
Unfortunately for landlords, section 11 by no means exhausts the extent of their obligations to keep the property in repair. Local authorities have powers under the Environmental Protection Act 1990 to inspect premises to check for hazards, and if a hazard is found, to compel the landlord to deal with it. It is possible to appeal from a notice under the Act, and we would of course be happy to advise on this.
Landlords should also be aware of their possible liability under the Defective Premises Act 1972 if a third party suffers injury or damage to property as a result of the landlord’s failure to carry out proper repairs.
If the landlord fails to fulfil his repairing obligations, either under section 11 or under the terms of the tenancy, the tenant will usually be entitled to damages. Formally speaking, the tenant is not entitled to deduct any such damages from his rent, but the tenant would be entitled to claim a set-off in any claim brought by the landlord for rent arrears, so the effect is much the same. Tenancy agreements often attempt to exclude this by stating that the rent must be paid without set-off, but such clauses are open to attack on a number of grounds and in general should not be relied upon.
Gas and furniture regulations
The Gas Safety (Installation and Use) Regulations 1998 impose a number of obligations on landlords in relation to all gas appliances provided at the property (usually the boiler and cooking facilities). The facilities must be checked by a gas safe engineer every year and records must be kept. Although certificates are often provided to tenants, this is not strictly a requirement. It should be noted that failure to comply with these regulations is a criminal offence and can lead to imprisonment.
In addition, the Furniture and Furnishings (Fire) (Safety) Regulations 1988 require that all furniture supplied by the landlord must be fire resistant. There are various tests which apply, but from the landlord’s point of view, it is sufficient to note that all furniture should carry a label stating that it complies with the Regulations. The tenant may require the landlord to replace any non-compliant furniture.
Right to quiet enjoyment
This right is implied (unusually) by common law and not by statute (although there is some over-lap with section 27 of the Housing Act 1988). It is implied into all leases and tenancies, and provides that the landlord will do nothing which interferes with the tenant’s occupation.
It should be said that this right is less extensive than some tenants imagine. In particular, the use of the word ‘quiet’ should not be taken to imply the absence of noise (although unreasonable noise may give rise to an action in nuisance).
In many cases, behaviour which breaches the right to quiet enjoyment is motivated by a desire to force the tenant out of the property without using the proper possession procedures. This sort of behaviour might include cutting off electricity or gas supplies or harassing the tenant on entering or leaving the property. However, the landlord does not necessarily have to possess such motivation for the tenant to enforce his right to quiet enjoyment.
Tenants whose rights to quiet enjoyment have been frustrated may seek an injunction restraining the behaviour in question or damages or both. In some cases aggravated or exemplary damages may be available.
For all tenancies which commenced on or after 6th April 2007, any deposit paid by the tenant must be kept in a deposit protection scheme (this can be either a custodial scheme or an insurance scheme). The rules relating to tenancy deposit schemes changed on 6th April 2012. The deposit must now be placed in an applicable scheme within 30 days of being received (up from 14 days), and notice must be given to the tenant within the same period. If this is not done, then the landlord may be subject to a penalty of between one and three times the value of the deposit (note that it is no longer possible to avoid this penalty by putting the deposit into a scheme before the date of the hearing). Also, it is not possible to obtain possession by the section 21 procedure (for which see below) if the deposit has not been properly protected.
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