Who is responsible for what?

A guide to landlords’ and tenants’ repairing obligations, in residential property

 

Building on our blog habitable properties, we are now looking at who is responsible for what, when there is an issue relating to repair or maintenance at a property.  Both landlords and tenants will have a vested interest in keeping their mutual property in repair - landlords so that they can protect their investment, and tenants so that they have a safe home to live in and be proud of.  Who (the landlord or tenant) is responsible for what repair and maintenance in or at the property, though, is often a point of dispute, and this article aims to simplify those responsibilities. 

The Landlord and Tenant Act 1985

The repairing provisions of the Landlord and Tenant Act 1985 (“the Act”) apply to short leases of residential property such as Assured Shorthold Tenancies for 7 years or less.  Section 11 of the Act states that the landlord is responsible for keeping the following in repair and proper working order: 

• The structure and exterior of the property (including drains, gutters and external pipes)
• The installations for the supply of water, gas and electricity and for sanitation (including basins, sinks, baths and sanitary conveniences, but not other fixtures, fittings and appliances for making use of the supply of water, gas or electricity)
• The installations for space heating and heating water.

Instances where the landlord is not responsible are also set out in section 11 of the Act: 

• To carry out works or repairs for which the tenant is liable by virtue of his duty to use the property in a ‘tenant-like manner’, or would be so liable but for an express covenant on his part.
• To rebuild or reinstate the property in the case of destruction or damage by fire, or by tempest, flood or other inevitable accident.
• To keep in repair or maintain anything which the tenant has brought in and is entitled to remove from the property.

The Act also provides that in determining the standard of repair required by the landlord, the age, character and prospective life of the property and the locality in which it is situated should be considered. 

The Act provides a legal minimum standard of repair, by the landlord.

A ‘tenant like manner’

The phrase ‘tenant-like manner’ was coined in the case of Warren v Keen 1953 – a leading case concerning a tenant’s repairing responsibilities and one which is often credited with defining the responsibilities of landlords and tenants in maintaining rented property.  The landlord put to the court that tenants should behave in a tenant-like manner, but what does behaving in a tenant like manner really mean?  

In 1953, Lord Denning summarised that behaving in a tenant like manner, means to take proper care of the property, for instance, by turning off the water and emptying the boiler when going away ‘for the winter’, cleaning the chimneys and windows when necessary, to ‘mend the electric light when it fuses’ and ‘unstop the sink when it is blocked by his waste’.  It was found that a tenant must do ‘little jobs’ which a reasonable tenant would do, and that the tenant must not ‘damage the property wilfully or negligently’ or allow his guests to, and if they do, the tenant should repair it.  

In today terms, behaving in a tenant-like manner would include undertaking general maintenance and carrying out small jobs at the property such as:

• Unblocking sinks, toilets, and drains
• Changing light bulbs and fuses
• Keeping the interior and exterior of the property clean, including cleaning the windows
• Bleeding radiators
• Garden maintenance, such as cutting grass and weeding 
• Ventilating and heating the property appropriately to avoid condensation

The Tenancy Agreement 

The tenancy agreement may impose further responsibilities on the landlord that exceed the legal minimum, and those terms will then also form part of the landlord's legal obligations.  

In respect of the tenant, the tenancy agreement will usually set out that the tenant is responsible for:

1.     Acting in a 'tenant-like manner' (as above)

2.     Reporting damage or need for repair to the landlord promptly

a.     A tenant must report damage or need for a repair to the landlord promptly.  If the tenant fails to notify the landlord of repairs required, this may prevent a landlord from complying with their obligations to carry out such repairs, which could then become part of a landlord’s defence, if said tenant were to subsequently bring a disrepair claim. The landlord would not be responsible for what they did not know about and could not have known about.

If the tenant fails to report damage or need for a repair to the landlord promptly or at all and then the issue gets worse, the tenant could then be held responsible for additional damage caused due to this delay.

3.     Providing access to the landlord or the landlord’s agents so that repair work can be carried out when necessary 

a.     Most tenancy agreements will include express terms requiring a tenant to allow the landlord or his agent access to the property for repairs or inspections, but even where there is not an express term providing for this, this will be implied.  The tenant is obliged to give access to the property at reasonable times of the day to allow the landlord or its agents to view the condition of the property, providing the tenant has had at least 24 hours’ notice, or to carry out repairs after having had reasonable notice.  

It would be a breach of contract for the tenant to prevent or continually refuse access without good reason. This breach could allow the landlord to sue for damages, consider action to repossess the property, or in extreme cases to seek an injunction in order to gain access.  Instances of the tenant refusing to allow the landlord access to deal with repairs would also likely have a detrimental effect on any subsequent disrepair claim brought by the tenant. 

Where access is not granted, a landlord is arguably prevented from carrying out its duties and responsibilities in respect of repair.  If the matter were to escalate and a disrepair issue was brought before the court, the landlord could refer to their attempts to carry out repairs and the tenant’s refusal to allow access in their defence and potential counterclaim, and ask the court to consider whether the tenant had therefore failed to mitigate its own loss – by neglecting to allow access and potentially allowing the problem to worsen.

4.     Ensuring the property is safe for visitors.

Any damage caused by the tenant, that is as a result of the tenant’s failure to report to the landlord, or has occurred because of negligence or the tenant’s visitor’s actions, is not the responsibility of the landlord to repair.

Summary

In summary, a sensible but broad view would be that a tenant is responsible for day-to-day maintenance of the property, and the landlord is responsible for works that require a professional or paid third party.  This way, landlords can be reassured that tenants will look after and maintain the property, and the landlord will be responsible for the larger jobs and more serious works, although this is not a hard and fast rule.

Please note that this article applies to private, residential tenancies – not commercial lets.  For further advice in relation to the above, from the perspective of a residential landlord or tenant, or in relation to commercial lets, contact [email protected].​​​​​​