Social housing and a tenant’s right to repair

Introduction

Under social housing, the tenant has a right to repair. By law, the landlord is under a duty to maintain the residential property in good repair. Where a landlord fails or refuses to carry out necessary repairs, a tenant can enforce this obligation of repair in a number of ways

In this article, we have explored tenants’ rights upon disrepair. This article provides a complete guide to your legal rights as a tenant in disrepair.

Reading Time: 5 Minutes

What is on this page?

  • Introduction
  • Repair obligations
  • The meaning of ‘disrepair’ and ‘repair’.
  • The distinction between repair and improvements
  • Express contractual obligation to repair
  • Implied obligation to repair.
  • Structure of house, installation and appliances
  • The extent of repairing obligation
  • Tenant’s obligations
  • Claims under negligence
  • Civil remedies.
  • Self-help set off against the rent.
  • What would you do next?

Repair Obligations

The duty to repair and maintain a residential property in a good repair falls mainly on the landlord unless otherwise agreed between the landlord and tenant. The obligation to repair is implied by the law. A tenant can also agree with the landlord and insert an express term in the tenancy agreement under which the landlord can take the responsibility of required repair. A tenant may also be able to enforce repair rights under negligence and personal injury.

The meaning of ‘disrepair’ and ‘Repair’

Disrepair

The term ‘disrepair’ implies that at some earlier stage a property was in a better state and has since deteriorated.

Repair

Repair includes the replacement or renewal of part of a house, it cannot include the rebuilding of a house that has tumbled down. But, so long as the house remains as a structure, repair imports an obligation to repair parts of it that have deteriorated.

Conditions

An obligation to repair will be interpreted by taking into account the age, character and location of a house. An old house will not have to be made as new or in a perfect state of repair. Repair work necessarily involves an element of renewal and improvement. The distinction between repair and improvement is for the court to make in each case taking into account the value of the property, cost of repair and other relevant factors.

The distinction between Repair and Improvements

There are three elements to be considered in determining if the work would amount to improvement or repair:

  •   Whether the alterations went to the whole or substantially the whole of the structure or to only a subsidiary part;
  •  Whether the effect of the alterations was to produce a building of a wholly different character from that which had been let; and
  • What was the cost of the work in relation to the previous value of the building, and what is the effect on the value and lifespan of the building?

Important Point

Putting in a damp course where none had existed before will be treated as an improvement.

An obligation to repair carries with it an obligation to re-decorate on completion of work as well.

Where the obligation to repair is on the landlord it will not arise until the landlord has notice of the defect either from the tenant or otherwise. An unaware landlord will not be held liable for disrepair.

Example

Fitz Corporation is the landlord of 30, Stone Road. Natasha, the tenant never mentioned any issues with the condition of the property and the landlord has not visited the property for a while. Natasha cannot bring a claim under disrepair against her landlord. As the landlord is not aware of any disrepair or notified by Natasha.

Express contractual obligation to repair

Where a landlord and tenant mutually agree between them an express term for repair. Such term will be binding on both of them.

However, the term agreed must not be excessive or must not place an extraordinary burden on tenant and the term must be reasonable. Where an express term goes beyond the normal meaning of repair the courts will enforce it against the landlord.

Implied Obligation to Repair.

  •   Where a furnished dwelling is let for immediate occupation it is an implied term that the dwelling is fit for human habitation at the commencement of the tenancy. 
  •   Where a tenancy agreement does not include an express term obliging the landlord to maintain common areas, entrance lobbies, lifts, rubbish chutes and lighting etc. in reasonable repair such a term is implied on the basis that tenants need to use these facilities or areas and must be kept in a reasonable state of repair. The obligation is on the landlord to maintain them reasonably and these premises must also be safe for tenants, visitors and licencees.
  •   There is an obligation on the tenant to use the dwelling in a ‘tenant-like’ manner, for example, cleaning windows, unblocking sinks, turning off water taps etc.
  •   An obligation on the landlord to repair implies a duty on the tenant to give reasonable access to the landlord so that he can carry out repairs.
  •    The residential premises let on a low rent for a period of up to 3 years must be fit for human habitation at the commencement of the tenancy and throughout the tenancy.
  •   landlords are also required:
  • To keep in repair the structure and exterior of the dwelling-house. (including drains, gutters and external pipes)
  • To keep in repair and proper working order the installations in the dwelling-house for the supply of water, gas, 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
  • To keep in repair and proper working order the installations in the dwelling-house for general heating and hot water.
  • The obligation does not arise until the landlord has notice of the defect.
  • An obligation to keep in good repair includes putting into good repair even where something was not in good repair at the commencement of the tenancy

Important

Where a tenant made a counterclaim in possession proceedings on rent arrears ground but had failed to notify the landlord of the defect, the landlord will not be held responsible for disrepair and it will not provide a valid defence to a tenant against possession proceedings.

Certain categories of tenancy, business and agricultural tenancies, are excluded from these implied obligations on landlords.

Structure of House, Installation and Appliances

The structure of a dwelling house consists of those elements that give provide its overall appearance, stability and shape. It does not extend to the many and various ways in which a dwelling house will be fitted out, equipped, decorated and generally made habitable.

Internal rendering and plasterwork have been held to constitute part of the structure of a dwelling house. However, the pathway and stairs giving access to a dwelling house are part of its exterior.

Installations.

Installations include wiring, pipes, tanks, boilers, radiators and other space heating Appliances.

The obligation of repair only extends to keeping these in good mechanical order and not to lagging pipes against the eventuality of bursting in unusually cold weather.

The extent of repairing obligation

  • This will be determined by taking into account all of the relevant factors.
  • The age and character of the building,
  • For tenancies commencing after 15 January 1989, and where a dwelling house, forms only part of a building the obligation to repair extends to any part of the building in which the landlord has an estate or interest. 

 Tenant’s Obligations

  •   The tenant must allow access upon given a notice by the landlord or by the landlord’s agent to inspect the state of repair of the dwelling at a reasonable time of the day.
  •   The tenant must allow access to a landlord and all reasonable facilities for him to carry out repairs.
  •   Identical access rights apply to protected and statutory tenants.
  •   There is generally no right to repair in the law of tort/negligence. However, tort sometimes offers remedies to those tenants who suffer damages or injuries due to the disrepair of the dwelling-house.
  •   English courts have been reluctant to find liability in the torts of nuisance or negligence against landlords of unfurnished property other than where the injury or damage results from a design flaw and the landlord were also responsible for the design or construction of the building.
  •    Landlords owe a general duty of care arising in regards to the design and/or construction of a building. It is the duty of a landlord to make sure that the building does not suffer from any design or construction issues, which may injure a tenant, visitor or licencee.
  •    A landlord may be liable for any injury or damage suffered by a tenant or any other person as a result of disrepair of those common parts, e.g. entrance halls/stairways/lifts etc., of a building retained by him under occupier’s liability.
  •   A landlord is under a duty to take such care as in all the circumstances of the case is reasonable, to see that the visitor will be reasonably safe in using the premises for the purposes for which visitor is permitted to enter the premises.
  •  Defective Premises Act places landlords under a duty to take reasonable care to protect any person who might reasonably be expected to be affected by any defects in the premises from any harm arising from a ‘relevant’ defect.

A relevant defect is one which engages the landlord’s obligation to repair and which is either notified to the landlord, by any means or of which the landlord should have had knowledge.

Example

 John a tenant suffered injury from carbon monoxide poisoning because of a faulty gas flue, and even though John had not notified the landlord of the defect in the boiler as required.

The landlord may still be held liable where he did not carry out regular maintenance of the gas boiler and also knew that the tenant John would not carry out the regular maintenance. The landlord may be held liable for failure to take reasonable care.

Civil Remedies

There is a number of civil law remedies open to the tenant of a landlord who does not meet his obligations to repair. However, these may be difficult for some, assured short-hold tenants, in particular, to pursue without risking their security of tenure. (time period as a tenant)

Self-help set off against the rent

  •   A tenant may rely on the law to set off the cost of outstanding repairs against future rent.
  •   Tenant is allowed to recover against a landlord for breach of an express or implied obligation to repair, where such tenant himself repairs the premises.
  •   Tenant must notify the landlord about disrepair before carrying out these repairs by himself.
  •   It is also important for a tenant to deduct only the proper amount necessary to carry out the repair, by obtaining a number of quotes and using the lowest quote.
  •   Where the landlord takes possession action for arrears of rent the tenant may counterclaim for disrepair.

Right to Repair Scheme (Applicable to Public Sector Only)

Public Sector Secure Tenants and  Housing Association’s tenants have a right to have certain repairs carried out within a specified period or receive compensation.

For further advice and assistance, you can seek free legal advice from legalally’s experienced housing lawyers. You may also be entitled to legal aid if you are earning below a certain amount.

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