THE TENANCY AGREEMENT AND RESPONSIBILITY FOR REPAIR AND MAINTENANCE
Responsibility within a tenancy agreement
One of the major issues relating to the renting and letting of property is that of maintenance and repair regarding the tenancy agreement. Who's responsible if the roof starts leaking,the central heating system breaks down? Even if the landlord and tenant have a comprehensive tenancy agreement that covers these matters in full, various Acts of Parliament often overrule the tenancy agreement. The law is not contained in any one single statute: it is a mixture of common law (judge-made law) and various statutory provisions designed to deal with diverse matters including tenancy agreements.
Primacy of terms in a tenancy agreement
In common law landlord / tenant liability for repairs is governed by the tenancy agreement. The terms of that contract ( tenancy agreement) may be set out expressly (express terms) or may be implied by law (implied terms). Some of these implied terms are implied by common law, others by Acts of Parliament known as statutory implied terms. The common law implied terms can be overridden by express terms of the tenancy agreement but the statutory implied terms cannot generally be ousted by the tenancy agreement, which makes the statutory implied terms extremely important to the tenancy agreement. It is therefore important for a tenancy agreement to look at:
Breach of these express or implied terms within the tenancy agreement is a breach of contract (tenancy agreement) and can be enforced by the parties to the contract, ( tenancy agreement ) i.e. the landlord or the tenant as the case may be.
The tenancy agreement & statutory implied terms
The tenancy agreement may set out clauses which stipulate who is liable for what repair. If the landlord has undertaken within the tenancy agreement to do all the repairs the tenant can enforce these obligations as set by the tenancy agreement. The landlords’ liability will depend upon the precise wording of the relevant clauses within the tenancy agreement.
‘repair’ & ‘improvement’
It is important to distinguish ‘repair’ from ‘improvement’ within the tenancy agreement. The word ‘repair’ is confined to the renewal or replacement of subsidiary parts of the building; improvement is adding things to the property that do not already exist. The law does not impose an obligation on the landlord to effect improvements unless he has expressly agreed to do so in the tenancy agreement. Therefore repairing a leaking gutter would be classed as a repair. If the tenant wanted a conservatory that would be classed as an improvement and to my knowledge not many landlords would sanction this work.
If the terms of the tenancy agreement place the repairing obligation on the tenants the question of whether or not this would be enforceable depends on the length of the tenancy and the type of repairs. If a tenant has a periodic tenancy agreement or a fixed term tenancy agreement for less than 7 years, most of the major repairing obligations will be placed on the landlord by virtue of Section 11 of the Landlord and Tenant Act 1985.
Section 11 of the Landlord & Tenant Act 1985
Section 11 applies to leases or tenancy agreement granted on or after 24th October 1961 for less than seven years. The vast majority of Assured Shorthold Tenancy Agreement s are periodic or for terms of less than seven years and therefore Section 11 applies for these tenancy agreement s. The landlords implied obligations under Section 11 are:
Definition of structure within the tenancy agreement
‘Structure and exterior’ in the first point are not defined by the Act. However, ‘structure’ defined in a tenancy agreement clearly includes the main fabric of the dwelling such as the main walls, foundations and roof timbers (including window frames) as distinct from decorations and fittings, while ‘exterior’ defined in a tenancy agreement has been held by the courts to include paths or steps which forms an essential means of access to the dwelling but not paving in the backyard or a footpath at the rear of the house.
‘Repair’ within the terms of the tenancy agreement
Condensation is frequently a problem in rental properties and is often disputed within tenancy agreements. This has been exacerbated in recent years by the removal of wooden windows and their replacement with UPVC ones. This has been frequently done without due attention paid to ensuring sufficient passive ventilation. Most tenancy agreement s have clauses within them requiring the tenants to ensure adequate ventilation. However, this is only selectively adhered to. The landlord is then frequently presented with the problems resulting from poor ventilation such as mould or damage to the plasterwork. If the condensation has caused damage to the main fabric of the property, such as the plasterwork, the landlord could be made to repair the plasterwork, but this will not cure the condensation; it will simply repair the consequences of the condensation. If the condensation cannot be cured by ‘repair’ but can be eradicated only by ‘improvements’, the landlord is not liable under Section 11 to remedy the problem. Tenants may be able to pursue the matter under the Environmental Protection Act 1990.
The landlord’s obligations within the tenancy agreement to repair and keep in proper working order the installations for the supply of water, gas, electricity, sanitation, room and water heating merely require him to maintain and repair the facilities that exist at the start of the tenancy agreement. If the dwelling does not have these facilities tat the start of a tenancy agreement , then there is no obligation on the part of the landlord to provide the necessary installations. Originally, the legislation was confined to installations which were actually within the four walls of the dwelling. However, if the tenancy agreement was granted on or after 15 January 1989 the landlord would be liable for the boiler irrespective of where it was located.
The landlord is liable for these matters under the tenancy agreement, even if the problem is a manufacturers’ defect – for example, if the boiler was defective when it was supplied and fitted. He has to put the problem right even if it was not his fault: this is known as strict liability. The only exception would be where the defect is due to some fault on the part of the tenants, who must use the property in a ‘tenant-like-manner’ to fulfill their tenancy agreement. So if the problems arise because the tenants have not used the property in a tenant-like-manner, the landlord is not liable for repairs to the items in question under the tenancy agreement.
Standards of repair regards the tenancy agreement
Section 11 provides that in determining the standards of repair to the property the courts must have regard to the character and prospective lifespan of the property and the locality in which it is situated. Therefore, if the house is in a poor condition at the start of the tenancy agreement and in an area of very poor-quality housing the landlord will not have to carry out comprehensive repairs under Section 11, nor will he be obliged to carry out improvements. Patching repairs may satisfy the requirements of Section 11, depending upon the circumstances of the case.
The requirement of notice within a tenancy agreement
The landlord is not liable under Section 11 (or indeed under any of the express or implied obligations) unless the tenant has given him notice of the need for repair. So, if a tenant is injured as a result of a defect, the landlord will not be liable under the tenancy agreement for his injuries if he had not been notified of the need to repair the defect.
Common law implied terms within a tenancy agreement
The tenancy agreement may stipulate that the tenant is liable for internal decorative repairs. Quite often, however, the tenancy agreement is silent on this matter. In which case, one must look to the implied terms arising either at common law or under statute.
Unfortunately, the common law is little assistance in the vast majority of cases: If the tenancy agreement is silent, the general rule is that there is no implication that the premises are fit for human habitation or that either party will be responsible for repairs. In other words, the common law is largely neutral. However, there are some minor exceptions for the tenancy agreement which are explained below:
Furnished lettings and the tenancy agreement
In the case of a furnished letting tenancy agreement the landlord warrants (by implication) that the property is fit for habitation at the date when the tenancy agreement commences. Therefore, if a furnished house is uninhabitable because it is infested with insects the tenant can, at the start of the tenancy agreement, immediately repudiate the tenancy agreement, recover any deposit or rent that he has paid and sue the landlord for any damage or loss suffered. However, the tenant must act quickly since this implied term arises only at the commencement of the tenancy agreement. The landlord cannot be compelled to make the property habitable. The tenant remedy is simply to cancel the tenancy agreement and recover his losses. There is no continuing obligation on the part of the landlord to keep the furnished premises fit for habitation.
Tenant’s duties to use the property in a tenant-like manner under the tenancy agreement
There is no implied term in any tenancy agreement, whether of a furnished or unfurnished property, that the tenant is to be responsible for repairs. However, the tenant must use the property in a ‘tenant-like-manner’ under the terms of a tenancy agreement. This means that he must take proper care of the property by doing the little jobs which can reasonably be expected of him from his tenancy agreement, such as unblocking drains, having chimneys swept, mending fuses and so on.
In certain circumstances where a tenancy agreement is signed but is incomplete, the court may imply a term, at common law, that the landlord will take a reasonable care of common parts under the tenancy agreement – for example, staircases and other facilities which are shared between various tenants. If the premises consist of a large tower block containing lifts, staircases and other common parts and the tenancy agreement of the individual flats do not oblige either tenant or landlord to maintain the common parts, the court may hold that, since the tenancy agreement is incomplete and the premises cannot function without such common parts being maintained, the landlord must have taken responsibility by implication within the tenancy agreement to keep them in a reasonable condition.
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