My topic in this chapter is often a vexed problem and there are many complaints by tenants about it.

Landlords often justify their failure to take action on the tenant’s failure to pay rent and things spiral downwards. Not always of course but I have seen this happen.

What am I talking about?

Tenant’s rights regarding the condition of the property

Since this course was first devised we have had new legislation come into force on fitness for human habitation, but I first want to look at:

Landlords’ statutory repairing obligations

Under section 11 of the Landlord and Tenant Act 1985, a landlord must:

• Keep in repair the structure and exterior of the dwelling house (including drains gutters and external pipes)
• Keep in repair and proper working order the installations for the supply of water, gas, electricity, and for sanitation (includes sinks etc., but not fixtures and appliances for making use of the supply of water gas and electricity) and
• Keep in repair and proper working order the installations for space heating and heating water.

However, a landlord will not be responsible for

• Damage caused by the tenant or resulting from the tenant’s failure to use the property properly
• The tenants own property
• Rebuilding in the case of fire flood or other inevitable accident
• Doing work where the problem is due to the design of the property rather than disrepair (under this legislation)

Plus, the property’s age, character, prospective life, and location will be taken into account (for example, by a court if a tenant applies for an order that works be done) when determining the standard of repair.

It’s important to realise that landlords are responsible under their repairing covenants WHETHER OR NOT THE TENANT HAS PAID RENT.

Note also that if your tenant withholds rent because you have failed to carry out essential repairs, and you issue proceedings for possession based on rent arrears, your tenant will have a defence.

You could end up being on the wrong end of a court order ordering you to do the repairs and being ordered to pay compensation to your tenants.

Depending on how much the arrears are, of course.  The Judge won’t make this sort of order if the repairs are minor and the tenant owes £10,000 worth of rent.

As discussed earlier in the chapter on Rent, tenants also have the right, in certain circumstances, to get the repairs done themselves and deduct the (reasonable) cost from their rent.

All of which means that you should make sure that the property is in tip top condition at the start of the tenancy and carry out regular inspections and do repair work as and when necessary. Keeping careful records of all that you do.

Flats in larger buildings

If the tenanted property forms part of a larger building (for example, a block of flats) which the landlord owns or controls, then the landlord will also be responsible for the repair of the common parts and installations, insofar as they affect the tenants use and enjoyment of his tenancy and the common parts.

So if there is one boiler in the basement that services all the flats and the landlord owns the block, he will be responsible for servicing the boiler.

However, if the common parts of the building are owned by someone else, then previously the tenant could not hold the landlord responsible for anything that might go wrong there.

Can you get out of your statutory repairing obligations?

It is virtually impossible to avoid liability. They cannot be excluded by any contract term. So, for example, if you have a clause in your tenancy agreement making your tenant responsible for keeping the brickwork of the property in proper repair, that will be void.

You also need to be careful about giving tenants low rents on the basis that they will do repair work which comes under the statutory repairing obligations. You may find that the tenant (once in the property) turns around and refuses to do the work, but continues to pay the low rent. There isn’t much you can do about this.

Better to have a market rent and agree to pay the tenant separately for the repair work.  Then, allow it to be offset against the rent.

The only legal way you can ‘get out’ of your repairing obligations is by making an application to the court and I have never known of a case where this has happened.

When should you do the repair work?

You cannot be liable to the tenant for failure to carry out repair work if you have not been told about it (assuming the disrepair is inside the property – if it is outside where you do not need permission to view it, you will be expected to know about it).

So, your tenants need to give you notice of the disrepair, preferably in writing.  Although, if they just tell you about it, you still ought to do something.

Tenants also cannot expect you to be liable for compensation for disrepair if they fail to allow you access to do the repair work! Something that happens sometimes.

If it happens to you, best to write to them telling them that if they won’t let you in to inspect/repair you cannot be held responsible for any problems that may occur as it will be their fault for failing to allow you access to deal with it.

The Fitness for Human Habitation legislaiton

The big problem with the landlords repairing obligations (from the tenants point of view) is that they only affect things which are in actual disrepair.  So landlords were not obliged to take action if something was of poor quality but did not actually need repair.

The main problem was with condensation, damp and mould issues, which often occur in properties which are technically ‘in repair’ but which are subject to damp and mould, sometimes to an alarming degree.

This was until December 2018 when the Homes (Fitness for Human Habitation) Act 2018 was passed.  It came into force (in England) in March 2019.  Similar legislation now applies in Wales.

What does the act do?

It requires landlords to ensure that properties are ‘fit for human habitation’ both at the start of and throughout a tenancy.

This is done by adding new implied terms to the Landlord & Tenant Act 1985, sections s 9A and 10.

‘Fit for human habitation’ is not a particularly high standard.  The legislation states:

Section 10 of the act has a list of the things to be taken into account, plus the act incorporates the Housing Health and Safety Rating System

Section 10 has a list of the ‘matters’ which include the Housing Health and Safety Rating System (which we will be looking at in the next section).

There are exclusions from liability which are very similar to those set out above for the repairing obligations.

Inspection visits

The fact that landlords now have these additional obligations make it more imperative that regular inspection visits are carried out.

These should be done, both to keep an eye on how the tenants are treating your property and to ensure that any minor repairs get dealt with promptly and do not escalate into something more serious (and more expensive).

Sometimes, landlords experience problems with tenants refusing to allow them access. Under s11(6) of the Landlord and Tenant Act 1985 you

However, notwithstanding this, if the tenant says that he does not agree to your going in to inspect, you must not use your keys to go in and inspect anyway.

This could get you into trouble and would be a breach of the tenant’s rights under the inappropriately named ‘covenant for quiet enjoyment’ (it does not require the property to be quiet or for the tenant to enjoy living there – it just means that the tenant has the right to keep most people out, including you).

Landlords tend to do far fewer inspections than they should – ideally you should be inspecting at three monthly, or at least, six monthly intervals.  We will be looking at other reasons why you should be doing inspections later in this course.

The Anti-Retaliatory Eviction Rules

These were introduced in the Deregulation Act 2015 and are intended to prevent landlords from evicting tenants because they have complained about the condition of the property. They only apply in England, although there are now similar rules in Wales.

Basically, the rules provide that no section 21 can be served for six months after receiving a Local Authority ‘improvement order’ (there are others, but the main orders are improvement orders).

If the notice is served in respect of a complaint the tenant made before the Local Authority notice was served, then any section 21 notice served in the meantime will be retrospectively invalidated.

There are similar retaliatory eviction prevention rules in Wales.