Part 3 - Legislation and the Property Condition

Before we discuss the legislation, let’s take a quick look at the ‘common law’ situation.  Or rather, the situation before any of the legislation was passed.

• The rule ‘caveat emptor’ or ‘let the buyer beware’ applied
• Tenants rights were limited to those in the contract, and
• Under the rule of ‘quiet enjoyment‘ – where allowing the property condition to deteriorate was considered to be a breach of the rule. The rules also prohibits landlords entering the property without the tenants’ consent
• Some other common law rights also apply, for example, under private nuisance and negligence, but they are considerably less important than the statutory rights.

Protective legislation has, however, now been passed. The most important being

• The Defective Premises Act 1972 (in particular s1 and 4)
  The repairing obligations under s11 of the Landlord & Tenant Act 1985 – this provides for landlords to be responsible for the structure and exterior of the property and the installations for the supply of water, gas and electricity, sanitation and for space and water heating
• The Housing Health and Safety Rating System (HHSRS) from the Housing Act 2004, which is a system of assessing housing standards used by Environmental Health Officers, and
• The Fitness for Human Habitation Act 2008 – which provides that properties must be fit for human habitation at the start of and throughout the tenancy – based on the standards in the HHSRS. This act actually amended the Landlord and Tenant Act 1985 (sections 9 to 10), where the new law can also be found.

But generally, landlords are not liable for:

• Damage done or caused by the tenants
• Tenants’ possessions
• Reinstatement after a major accident or disaster
• Where works would be in breach of an enactment (eg planning), and
• The standard of repair required under s11 depends on the type of property concerned

In Wales

There are very similar rules in Wales, set out in the Renting Homes (Wales) Act 2016.

Dealing with non compliance

There are two ways that landlords can be made accountable for non-compliance –

1. Civil claims

The first is through claims made by tenants for

• an injunction ordering their landlord to do works, and
• a claim for compensation for having had to endure living in a sub standard property

However, despite the fact that many landlords fail to keep properties in a proper condition, there are comparatively few claims. Probably the main reason for this is the fear that landlords will respond (or ‘retaliate’) by bringing a Section 21 eviction claim.

The government has attempted to resolve this problem by prohibiting claims under section 21 within six months of the issue of a Local Authority Improvement Notice, but this is limited protection as the landlord can always bring the claim after the six-month notice period is over.

Note that if tenants do bring a claim, they are expected to comply with the relevant Pre-Action Protocol (there are separate protocols for England and Wales).

2. Criminal claims

The second way that the rules can be enforced is via Local Authorities.

In particular, if a landlord is found to have a ‘category one hazard’ following an HHSRS inspection but fails to carry out remedial works.

This is normally done by issuing an Improvement notice, and failure to comply with this can entitle the Local Authority to prosecute or serve a penalty charge notice.

Non-compliance will also entitle tenants to apply for a Rent Repayment Order.

Tips and Practice points (landlords)

• Always ensure that the property is in tip-top condition before tenants move in – and ensure you have proof of this in the form of an inventory ideally prepared by a third party (e.g. your letting agent or a professional inventory clerk). Photographs are a good idea.
• If the property needs repair work done, always do it – the fact that tenants are in arrears of rent is no justification for refusal. If the damage was done by the tenants, then you can recover the reasonable cost of repair (provided you can prove this) from their deposit.
• Once repair work has been done, always write to the tenants confirming this and ask them to let you know if there are any remaining issues. This will make it more difficult for them to complain later.

How to find out more

Free resources:

Gov.uk guidance on repairs
Video on HHSRS
Video – Do landlords have access in case of emergency?
Video – How landlords can be liable for defects even if you have not been told about them
Landlord Law Quick Guide on the Property Condition
Blog post – Edwards v Kumarasamy – the final decision
Blog post – Disabled tenant wants landlord to help him enjoy his property
Blog post – Landlords liable for plaster says Court of Appeal

Landlord Law members:

FAQ – What are landlords repairing responsibilities?
Article – Landlords Obligations for Fitness for Human Habitation
Article – The Housing Health and Safety Rating System – Myths and Misconceptions
Training webinar recording on the Property Condition – legislation
Article – What are the rules about the condition of rented properties in Wales?
Video – Quantum in disrepair cases

This is just a short selection from the Landlord Law content on this topic. Members will find other articles and FAQ linked from the topic page and from the Wales page.

Landlords whose tenants refuse to allow them to access the property for inspections and to carry out repair work may find our Property Access Kit helpful (it includes detailed guidance on obtaining an injunction order).

There is also our telephone advice service.

You can keep up to date via the weekly bulletin and the Newsround posts on the Landlord Law Blog.

The next part of this course looks at the property condition regulations.