University of Exeter
Landlord’s Obligations
Naomi Cunningham & Katherine Breckin
18 June 2013
University Policy
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Members of the University are asked to contact the Estate Development
Service (“EDS”) to discuss any proposed lettings/ leases or other property
interests early on in such discussions.
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The purpose of such discussions will enable EDS to ensure the proposals
dovetail with the University’s wider estate strategy and will also enable EDS
to explore and bring savings and efficiencies to the process. EDS will also
be able to advise and negotiate, as required, to ensure the best rental rates
and terms and considerations are achieved and to mitigate any risks that
could arise from such proposed arrangement.
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Overview
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Repairs
Occupier’s Liability Act 1957
Derogation from grant/breach of Quiet Enjoyment
Tenant’s obligations
S.11 Housing Act
Nuisance
Gas and Electrical Safety
Furnishings
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Repairs
• Duties usually arise as express term of
the contract
• Oral lettings
• Vital to get terms right at the start
• Be careful what you agree to!
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Repairs cont’d
• Contractual liability – in general terms a landlord is only
liable to a tenant for repairs where it has an express obligation
• Liability in Negligence – in the absence of an express
or implied obligation to repair or maintain, a landlord owes no duty of
care to a tenant, his family or visitors
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Robbins v Jones (1863)
“A landlord who lets a house in a dangerous state is not
liable to the tenant’s customers or guests for accidents
happening during the term; for fraud apart, there is no law
against letting a tumble-down house”
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Terms inferred
• In the absence of an express obligation,
it’s possible to infer a repairing obligation
from conduct
• Murphy v Hurly (1922)
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Common Law
• It’s established at common law that there is no implied
covenant on the part of the landlord;
1. That the premises are reasonably fit for occupation
2. That the premises are reasonably fit for the purpose for
which they are let
3. That the landlord will do any repairs to the premises
4. That the building will last the term of the lease
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Exceptions to the general rule
(commercial lettings)
• Where an obligation to repair can be
implied;
• Where the landlord retains ancillary
property;
• Where the right granted is a licence
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1st Exception
Implied repairing obligation
• Courts reluctant to imply repairing
obligation
• Most likely when landlord retains
possession of access or facilities which
are essential for the ‘proper enjoyment of
the premises’
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Implied – cont’d
• Duty – to take reasonable care to keep the
access/facilities in a reasonable state of
repair and efficiency
• Dunster v Hollis (1918)
• Common Parts
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2nd Exception
Retained Parts
• Landlord of multi occupied building owes a
limited duty in relation to parts of the
building not demised
• Duty is to take reasonable care
• Doesn’t extend to maintenance – no
damage – no breach
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3rd Exception
Licences
• Courts may imply terms as to fitness into
contractual licences
• Wettern Electric Ltd v Welsh Development
Agency (1983)
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Occupier’s Liability Act 1957
• Principal importance in relation to third
parties
• As between landlord and tenant –
common parts
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Occupier’s Liability Act 1957
• An occupier is someone who has;
“a sufficient degree of control over the
premises to put him under a duty of care
towards those who came lawfully onto the
premises”
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Occupier’s Liability Act 1957
• Where premises let as a whole – the
landlord has parted with possession
• Where the landlord retains part – he’s
regarded as still having control
• Common duty of care
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Occupier’s Liability Act 1957
• Tenant using common parts would
constitute visitor for purposes of the Act
• Duty to see that visitors are reasonably
safe
• Doesn’t cover risks willingly accepted
• Warning notices may cover obvious
dangers
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Occupier’s Liability Act 1957
Examples
• Geary v JD Wetherspoon (2011)
• Bowen and others v The National Trust
(2011)
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Derogation from Grant/
Quiet Enjoyment
• Terms interchangeable
• Common Law duty – not to give with one
hand and take away the means of
enjoying it with the other
• Duty can extend to taking action against
third parties or trespassers
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Derogation from Grant
Examples
• Platt v London Underground Ltd (2001)
• Chartered Trust Plc v Davies (1998)
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Tenant’s implied duties
• In the absence of express agreement between
the parties, the tenant is under no duty to keep
the premises in repair.
• Only required to use the premises in a ‘tenant
like’ manner
• Not to commit voluntary waste
• The obligation on a tenant for a fixed term not to
commit permissive waste
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Tenant-Like User
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“take proper care of the place”
Not an obligation to repair
To use premises in a reasonable way
“to do little jobs about the place which a
reasonable tenant would do”
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Voluntary Waste
• Deliberate or negligent act which damages
the premises
• Causes damage to the value of the
landlord’s interest in the premises
• Must be a positive act rather than
omission
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Permissive Waste
• Involves allowing damage to occur
• Liability only applies to fixed term tenancy
• Tenants at will or periodic tenants not
liable
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Residential Property
Overview
Landlord and Tenant Act 1985
Defective Premises Act 1972
Environmental Health Protection Act 1990
Gas Safety (Installation and Use)
Regulations 1988
• Furniture and Furnishings (Fire Safety)
Regulations 1988 (as amended)
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Residential Occupation
Agreements
Rent Act tenancy
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Rent Act 1977
Created before 15 January 1989
‘protected tenancy’
Rent increases subject to tight control
A valid Notice to Quit can terminate the contractual
tenancy but a statutory tenancy is automatically created
• Succession
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Assured Shorthold Tenancy
Agreement
• Housing Act 1988
• Started after 15 January 1989;
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it is not a holiday or business let;
the landlord is not resident;
a market rent is charged; and
where the landlord wants to retain the ability to recover
possession after the expiry of the fixed term
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Assured Tenancy
• Housing Act 1988
• Conditions
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started after 15 January 1989;
it is not a holiday or business let;
the landlord is not resident;
a market rent is charged;
• Difference between AST and AT relates to recovering
possession.
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AST vs AT
• AST - possession can be recovered after
the expiry of the fixed term without
reliance upon of the statutory grounds for
possession
• AT – the tenant has the ability to remain in
occupation of the property unless the
landlord can establish one or more of the
statutory grounds
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Non-assured Tenancy
• Not regulated by the HA 1988
• Is used when an AST or AT is not
appropriate
• e.g. a fixed term tenancy of residential
property granted to a company
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Non-assured College Let
• Housing Act 1988
• Granted to a student by the University
• University’s current Accommodation
Agreement for Self-Catered Residences –
Self Contained Studio or Flat is a nonassured college let
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Licences
• Permission to use or occupy land
• Crucial distinction between a lease
(tenancy) and a licence is ‘exclusive
possession’
• Actual circumstances of their occupation
• Licensors have far fewer obligations
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Landlords’ Obligations
• Express – look at the agreement
• Implied
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repair
not to cause a nuisance
covenant of quiet enjoyment
covenant against derogation from grant
safe supply of gas
furnishings
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Landlord & Tenant Act 1985
s8
• Implied terms as to fitness for human habitation
• (1)…
• (a) a condition that the house is fit for human habitation at the
commencement of the tenancy, and
• (b) an undertaking that the house will be kept by the landlord fit for
human habitation during the tenancy.
• ‘unfit fit for human habitation’
• s8 has no effect if the problem cannot be remedied at ‘reasonable
expense’ (Buswell v Goodwin (1971))
• Notice
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s11 LTA 1985
• ‘Repairing obligations in short leases’
• Basic state of repair of residential properties.
• Obligations implied into all forms of tenancy agreements
apart from;
– tenancies that started before 24 October 1961;
– tenancies where the lease is for 7 years or more; or
– if the landlord and tenant have validly contracted out of the
section 11 obligations.
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s11 LTA 1985 Cont’d…
• s11 rarely contracted out of
• s11 obligations apply whether or not the ‘dwelling house’
was in need of repair before the tenant moved in or
whether it becomes in need of repair whilst the tenant is
in occupation.
• 'dwelling-house' - the building or part of the building
which is let wholly or mainly as a private residence (s16
LTA 1985)
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s11(1)(a) LTA 1985
• ‘keep in repair’ the structure and exterior of the
dwelling-house.
• ‘structure and exterior’ includes the roof, drains,
gutters and external pipes.
• ‘repair’ depends upon the age, character,
prospective life of the dwelling-house and the
locality in which it is situated (s11(3))
• McGreal v Wake (1983)
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s11(1)(b) LTA 1985
• ‘keep in repair and proper working order’ the installations
for the supply of water, gas, electricity, sanitation.
• This includes basins, sinks, baths, toilets, electrical
sockets and wiring but specifically excludes other
fixtures, fittings and appliances for making use of the
supply of water, gas or electricity such as the fridge or
the cooker.
• Connor v Old Etonians Housing Association Ltd (2002)
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s11(1)(c) LTA 1985
• ‘keep in repair and proper working order’
the installations in the dwelling-house for
space heating and heating water.
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s11 LTA 1985 Cont’d…
• s11(1A) shared parts
• Obligations set out in 11(1)(a)-(c) also apply to shared
common parts such as the hallways and lifts
• Landlord must be notified of the disrepair
• Landlord is then permitted a reasonable amount of time
to carry out the remedial works
• What is 'reasonable' depends on how serious the
disrepair is and the impact of the disrepair on the tenant
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s11 LTA 1985 - Exceptions
• s11(2)(a) ‘tenant like manner’
• Tenant is obliged to
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unblock sinks
open windows to ensure that the property is ventilated
replace fuses and
keep the heating on in the property for a short period
of time each day throughout winter months even
when the tenant is away for the holiday
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s11 LTA 1985 – Exceptions
Cont’d…
• s11(2)(b) ‘rebuild or reinstate’
• Landlord does not have to 'rebuild or
reinstate' premises which have been
damaged by fire, storms, flood and other
'inevitable accidents'
• Landlord is still liable to carry out repairs
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s11 LTA 1985 – Exceptions
Cont’d…
• S11(2)(c) anything which the lessee is
entitled to remove
• Landlord is not obliged to keep in repair or
maintain anything which the tenant is
obliged to remove from the dwellinghouse.
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Repair v Improvement
• The tenant cannot use the provisions
within the1985 Act to require the landlord
to carry out improvements.
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Non-compliance with s11 LTA
1988 – tenants’ remedies
• Lee-Parker v Izzett (1971) – tenant can
carry out the work and then deduct the
cost of the work from the rent
• Order for specific performance
• Damages
• Claim under Defective Premises Act 1972
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Implied Contractual Duty of
Care
• Likely to be implied where it is necessary for the landlord
to be obliged to maintain various services such as lifts
and stairways because without them it would not be
possible to live in the property.
• Halls of Residence - there is a duty repair any concealed
dangers and those which are entirely visible.
• Duty only owed to the contracting party (i.e. the tenant)
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Landlords’ Liability in
Negligence
• A claim in negligence can be brought against a landlord if:
a) by an action or omission
b) on premises retained within the landlord’s exclusive possession and
control
c) damage is caused to the tenant’s premises or personal injury is
caused; and
d) the tenant can establish that the landlord owed a duty of care
(whether express or implied)
• This duty is wider than the implied contractual duty of care
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Covenant for Quiet Enjoyment
• Tenant will have possession of the property without
interference or interruption from the landlord or anyone
authorised by the landlord
• Disrepair can affect a tenant’s right to quiet enjoyment.
• Must be serious and more than temporary
• Anderson v Oppenheimer (1880)
• Southwark LBC v Mills (2001)
• Can be replaced with express covenant and can be
made conditional
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Breach of Covenant for Quiet
Enjoyment
• Potentially treat their lease as having
come to an end
• Injunction
• Claim for damages
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Covenant against Derogation
from Grant
• Landlord cannot essentially deprive the
tenant of the benefit of the lease.
• Close relationship between the covenant
for quiet enjoyment and derogation from
grant.
• Acts of other tenants
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Licensors’ Obligations
• Smith v Nottinghamshire CC (1981)
implied covenant for quiet enjoyment
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Duties owed by Landlords
and Licensors
Statutory nuisance
• Environmental Protection Act 1990
• 'prejudicial to health’ or is ‘a nuisance'.
• Anything which is ‘injurious to health’,
'likely to cause injury to health' or which
interferes with the normal use of property.
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Duties owed by Landlords
and Licensors Cont’d…
• S79 EPA 1990
– The condition of land/property - a defect to a property could be a
statutory nuisance if it is a nuisance or danger to occupants or
occupants of neighbouring properties such or loose roof tiles
– Piles of rubbish
• EHO can serve an abatement notice
• If nuisance not remedied landlord can be prosecuted and
fined.
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Duties owed by Landlords
and Licensors Cont’d…
Private Nuisance
• Act or omission of the landlord on his own land, unduly
interferes with the tenant’s comfortable and convenient
enjoyment of the demised premises.
• Sharpe v Manchester CC (1977) an invasion of
cockroaches from the service ducts of a block of flats
was held to be a nuisance.
• Behaviour of other tenants
• Remedies include injunction and damages
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Duties owed by Landlords
and Licensors Cont’d…
S4(1) Defective Premises Act 1972
• Obligation to the tenant for maintenance and repair of
the premises (implied or express)
• All persons who might reasonably be expected to be
affected by defects in the state of the premises
• ‘a duty 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’
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Duties owed by Landlords
and Licensors Cont’d…
DPA 1972 Cont’d..
• If the landlord knows or if he ought to have
known of the relevant defect
• No notice requirement
• A claim would extend to covering personal items
that have been lost or damaged as well as
personal injury.
• Drysdale v Hedges (2012)
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Duties owed by Landlords
and Licensors Cont’d…
Gas Safety (Installation and Use) Regulations 1988
• Criminal offence for a landlord to let a property without a
current safety certificate in relation to gas supply and
fittings.
• Landlords are responsible for ensuring that gas
appliances and flues are:
• Maintained in good order
• Checked for safety at least every 12 months
• To keep a record of the safety checks
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Duties owed by Landlords
and Licensors Cont’d…
Electricity
• Under Building Regulations Requirement P a landlord
must be able to prove that all 'fixed electrical installations
and alterations' carried out from 1 January 2005 were
carried out and certified by a 'competent' person.
• All electrical appliances provided by the University must
be checked for compliance with The Electrical
Equipment (Safety) Regulations 1994.
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Duties owed by Landlords
and Licensors Cont’d…
Furniture and Furnishings (Fire Safety) Regulations
1988 (as amended)
• All furniture provided by a landlord and which has been
produced since 1988 must be labelled to show it
complies with the Furniture and Furnishings (fire Safety)
Regulations 1988.
• Items to have greater fire resistance.
• Items which are covered by the regulations include,
upholstered seating furniture, beds, mattresses,
headboards, sofa beds and seat pads,
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Questions?
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