Statutory Implied Terms

2.4 Statutory Implied Terms

2.4.1 Landlord and Tenant Act 1985

Section 11 of the Landlord and Tenant Act 1985 implies a term into tenancy
agreements for less than seven years that the landlord shall keep in repair:

• the structure and exterior of the dwelling;
• the installations for the supply of water, gas, electricity and
sanitation;
• the installations for the supply of space heating and water
heating, and;
• the communal areas and installations associated with the
dwelling (Section 11 as amended by section 116 of the
Housing Act 1988), where these are controlled by the landlord.

The Act also provides that the standard of repair necessary will vary
depending on the ‘age, character, and prospective life of the property and
its location’.

2.4.2 Access to Property

Section 11 – subsection (6) implies a term into the tenancy agreement that
landlords with section 11 repairing responsibilities (or people authorised
by them) have the right to access the property for the purpose of viewing
its condition and state of repair. Access can only be at reasonable times of
the day and after giving the tenant not less than 24 hours notice in writing.

This section does not extend to actually carrying out the repairs. The
right to enter for the repair would be an implied term, as the law says the
landlord must do the repair, it is implied s/he has the right to enter to do
it. However, the right to enter to do repairs (subject to notice being given)
is generally included in tenancy agreements and if the tenant refuses to
allow the landlord access to carry out the repairs, the tenant will not be
in a position to complain about the property or to claim for damages for
disrepair or for personal injury caused by the disrepair.

Indeed if the tenant’s failure to allow the landlord access to do the works
results in further deterioration or damage to the property, the tenant may
be liable to the landlord (entitling the landlord, for example, to deduct the
additional costs incurred from the damage deposit).

Note that although section 11(6) gives the landlord the right to enter the
property (after having given notice), this does not mean that the landlord is entitled to enter the property at that time regardless if the tenant
asks the landlord not to. However, if the particular appointment time is
inconvenient, the tenant will be expected to consent to an appointment at
another time.

If the tenant refuses to allow the landlord access at all, the tenant will be
in breach of their tenancy agreement, because the right of access is an
implied term of the agreement. In some circumstances (for example if the
property is clearly in disrepair) this may entitle the landlord to apply for an
order for possession.

Generally, landlords should be wary about entering the property when the
tenant is not there. Where a tenant has given permission, but have advised
they will not be at the property themselves, it is recommended that
landlords/agents are best accompanied by a witness.

2.4.3 Breach of Repair Obligations

The landlord will be able to pass on the cost of works or repairs to the
tenant if work is needed because of the tenant’s breach of their obligations
under the tenancy.

Action can be taken by the tenant in the county court for breaches of the
landlord’s repairing obligation. This is a civil action, and tenants can claim
compensation for damage and inconvenience resulting from the breach.

The landlord should receive notice of this in advance of any claim being
brought, as tenants are now obliged to comply with the ‘Pre-action Protocol
for Housing Disrepair’. This protocol provides that tenants must inform
their landlord in writing (an ‘early notification letter’ followed by a ‘letter
of claim’) of all relevant matters before issuing legal proceedings. The
protocol gives full details of the information to be provided and specimen
letters. If the tenant does not comply with the protocol, the landlord can
ask the court to stay the claim until the provisions of the protocol have
been complied with. A copy of the protocol can be downloaded from Her
Majesty’s Courts Service website at www.hmcourts-service.gov.uk.

Section 17 of the Landlord and Tenant Act 1985 requires specific
performance (saying the landlord will have to do the repair) where there
has been a breach, i.e. the payment of compensation may not be sufficient
remedy.

This means that the county court can make an order requiring the landlord
to fulfil the express or implied repairing terms of the tenancy agreement.
The county court can make an injunction requiring the landlord to do
repair work which may or may not be within the terms of the contract.
If the landlord fails to carry out the works required by the court order,
the landlord, or his agent, can in very extreme situations be committed
to prison for contempt. The county court can alternatively direct that
the repairs be undertaken by or on behalf of the tenant at the landlord’s
expense.

Damages (compensation) can still be claimed even if the works have been
carried out by the time the case reaches court.

In practice it is rare for these extreme measures to be used. However, it is
important to be aware that these penalties exist, and every care should be
made to respond promptly to repairing obligations when they arise. It is,
after all, protecting any financial investment. If the property is properly
insured some work may be covered by the insurance policy.

2.4.4 Defective Premises Act 1972

Section 4 of the Defective Premises Act 1972 places a duty of care on the
landlord in relation to any person who might be affected by a defect, ‘to
take such care as is reasonable in all the circumstances to see that they
are reasonably safe from personal injury or from damage to their property
caused by a relevant defect’.

This is civil redress. A defect is relevant if the landlord knew about it or
should have known about it - the fact that a defect has not been reported
or there has been a failure to inspect (e.g. rotten floorboards or joists) does
not remove liability. It is for this reason that it is important that landlords
(or their agents) carry out regular checks on the property.

In this case the premises includes the whole of the letting - i.e. including
gardens, patios, walls, etc - and can be applied to the communal areas of
estates or multi-occupancy buildings, including lifts, rubbish chutes, stairs
and corridors. Section 4 provides tenants or other affected persons with the
right to seek compensation for personal injury or damage to property.

2.4.5 Occupiers’ Duty of Care

Section 2 of the Occupiers’ Liability Act 1957 provides that the occupier of
a property has a duty of care to all visitors who come onto their premises.
This applies to landlords where they are the legal occupier of some parts
of their rented stock e.g. shared-use areas such as lifts, staircases and
entrance lobbies – in some cases even grounds and car parks.

The duty means taking such care as would be reasonable in all
circumstances to see that the visitor is reasonably safe in using the
premises for its purpose. The landlord is liable for any injury caused to
a visitor as a result of defects in the part of the building occupied by the
landlord.