THE PROFESSIONAL ASSOCIATION FOR LANDLORDS
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Like the landlord, the tenant has repairing responsibilities that are found in the express and implied terms of the tenancy:
To behave in a ‘tenant-like manner’ – implied term
There is an implied term for the tenant to maintain the property in a ‘tenant-like manner’. In one case this was described as meaning that s/he is obliged to avoid or repair wilful or negligent damage, and do the minor acts necessary to keep the premises in a reasonable state. Examples were given of repairing the electric light if it fuses and unblocking the sink if it becomes blocked by waste. The tenant’s duty includes turning off the water and emptying the boiler if going away for the winter, but not if going away for a relatively short period. The duty does not cover fair wear and tear, which is the landlord’s responsibility.
To allow access for repairs – implied term
The tenant has an implied obligation to the landlord to give access for repairs. The tenant is obliged to give access to the property at reasonable times of the day to allow the landlord/landlord’s representative to view the condition of the property following 24 hours’ notice in writing or to carry out repairs following reasonable notice.
Regulated and assured tenants are required to give access to the property and reasonable facilities for repairs to be carried out. While is no statutory obligation on the tenant to respond to the landlord’s notice and grant access in advance, preventing the landlord/landlord’s representative from exercising their right to enter on the date specified in the landlord’s notice could amount to a breach of contract.
Under the Pre-Action Protocol for Housing Disrepair Cases, the tenant must allow their landlord reasonable access for inspection and repair in accordance with her/his tenancy agreement. Where a landlord is finding it difficult to get access to a property, s/he should communicate this to the tenant in response to any claim from the tenant in relation to a repair being carried out. In one case, the County Court agreed to make an injunction to compel a housing association tenant to provide access to her property (in accordance with her tenancy agreement) to allow repairs to be carried out. The Court stated that the landlord had complied fully with the Pre-action protocol, and that the fact that there was some outstanding disagreement on the full extent of the landlord’s liability for repairs did not mean that those repairs which had been agreed should not be carried out according to the landlord’s schedule.
Express terms of the tenancy
The tenancy agreement, whether written or oral, may contain express terms in relation to repairs, maintenance and the landlord’s right to enter to inspect/carry out repairs. A repairing obligation in the tenancy agreement will only be binding on the tenant if:
- it is not an unfair term, and
- it does not relate to repairs for which the landlord has an implied statutory obligation under section 11 of the Landlord and Tenant Act 1985.
A tenancy agreement may impose express terms on the tenant in relation to facilitating the landlord’s access for the purpose of carrying out inspections and/or repair works. Such terms should be fair and the landlord should have regard to the tenant’s right to quiet enjoyment of her/his home. In one case, where a term in the contract required a long leaseholder to ‘permit’ the landlord access for inspection on notice, the fact that the occupier failed to respond to the landlord’s notice and grant access in advance did not amount to a breach of contract – as the landlord did not actually seek to enter the property on the specified day, there was no evidence that the tenant refused access.
As an occupier
The tenant also has certain responsibilities as an occupier of the property.
The occupier of a property has certain repairing obligations. This applies whether the occupier is a tenant, an owner-occupier, a licensee, or a landlord. The landlord’s liability extends to parts of the property that s/he has retained for her/his occupation: this could be a room in the property or common parts such as entrance steps, a courtyard or the roof.
The occupier has a duty of care to a visitor to the property, so far as is reasonable, to ensure that s/he is reasonably safe while using the premises. The duty only applies to the purposes for which the visitor is invited or permitted by the occupier to be in the premises. The liability is to the visitor and to the visitor’s property.
The occupier also has a duty to a person other than a visitor, such as a trespasser, if:
- the occupier is aware of the danger or has reasonable grounds to believe that it exists
- the occupier knows or has reasonable grounds to believe that the person is in or may come into the vicinity of the danger, and
- the risk is one against which, in all the circumstances of the case, the occupier may reasonably be expected to offer some protection.
In this situation the liability is to the person alone and not for damage to the person’s property.