The Law Commission

PART 8

REPAIRS

PART 8 REPAIRS INTRODUCTION^[1]

8.1      One of the principal objectives of housing law is to provide a legal framework within which those who rent homes can be assured that they have reasonable conditions in which to live. For many years the law has imposed obligations on landlords to keep the structure of their buildings in proper repair.

8.2      In 1996, the Law Commission undertook a comprehensive review of this area of law.^[2] The Report made four principal recommendations.

(1) Where a landlord lets residential property for a period of less than seven years, it will be an implied term of the lease that the landlord will ensure that the property is fit for human habitation both at its commencement and throughout the duration of the lease.

(2) On the grant of the lease, the parties should make express provision in order to allocate the responsibility for the repair of the property. In the absence of any such express provision, the repairing burden should fall on the landlord.

(3) Repairing obligations (whether owed by landlord or tenant) should be capable of enforcement by specific performance.

(4) Those in lawful occupation or possession of property belonging to another should be subject to a code of basic obligations as to the manner in which they treat the premises.

The Government still has them under consideration.

8.3      There has been one significant development in the law. The single test of fitness for human habitation found in the Housing Act 1985 has been replaced, under the Housing Act 2004, by a more flexible set of principles, designed to relate the degree of hazard present in accommodation to those who are actually going to reside in it.

8.4      As we had undertaken a major review of the law, we did not specifically consult on the issues surrounding repairing covenants for Renting Homes. We noted that the approach adopted in our earlier Report broadly complemented the consumer protection approach adopted in Renting Homes.^[3] In particular, our earlier recommendation that accommodation should be fit to live in at the start of an agreement exactly matched our current thinking.

8.5      Occupation contracts must contain fundamental terms relating to repairing obligations. The question is the degree of detail we should recommend at this stage.

FUNDAMENTAL TERMS

8.6      With these points in mind, the Bill, as currently drafted, imposes two broad obligations on landlords.^[4] The approach is to restate existing law, and our previous recommendations for reform of the law, adapted to meet the needs of our scheme.

8.7      First, we recommend that landlords must ensure that there is no category 1 hazard^[5] on the premises subject to the contract.^[6] This adapts the recommendation made in Landlord and Tenant: Responsibility for State and Condition of Property^[7] relating to unfitness for human habitation, to accommodate the change in the law introduced by the Housing Act 2004.

8.8      Second, they must keep in repair the structure and exterior of the premises, and keep in repair and proper working order the service installations in the premises.^[8] This test restates in modern form the test which currently appears in the Landlord and Tenant Act 1985 section 11. This obligation will apply to all periodic occupation contracts, and fixed term standard contracts for a term of less than seven years. Unlike section 11, it will therefore extend to licences as well as leases.

8.9      Each of these tests is to be applied flexibly. The Bill therefore provides that:

(1) both tests are adapted where the premises form part only of a building;

(2) the standard of repair is that which is reasonable having regard to the age and character of the premises and the period during which they are likely to be available for occupation as a home;^[9]

(3) the landlord must make good any damage caused by works and repairs needed to comply with these obligations,^[10] and may not impose any obligation on a contract-holder who enforces or relies on the landlord's obligations;^[11]

(4) The landlord complies with the repairing obligations if they carry out the necessary works or repairs within a reasonable time after the day on which they become aware that the works or repairs are necessary.^[12]

Limits

8.10      Notwithstanding their generality, these rules are subject to a number of limitations.

(1) There is no liability if a category 1 hazard is incapable of removal by the landlord at reasonable expense.^[13]

(2) The landlord is not required to rebuild or reinstate premises or any part of them where destruction or damage is caused by fire, storm, flood or other inevitable accident.^[14]

(3) The landlord is not obliged to keep in repair anything the contract-holder is entitled to remove from the premises (for example, an electric fan heater).^[15]

(4) The landlord is not obliged to carry out works or repairs to other parts of the building unless the disrepair or failure to keep in working order affects the contract-holder's enjoyment of the premises or the common parts which the contract-holder is entitled to use.^[16]

(5) The landlord is not liable if the existence of the category 1 hazard or the disrepair or failure of a service installation is wholly or mainly attributable to lack of care^[17] by the contract-holder or a permitted occupier of the premises.^[18]

(6) The landlord's obligations to repair do not arise until the landlord is aware that works or repairs are necessary.^[19]

Access

8.11      The landlord may enter premises at any reasonable time to inspect the condition and state of repair of the premises or to carry out works or repairs.^[20] At least 24 hours' notice must be given.^[21]

8.12      The landlord is not liable where the works have to be carried out in another part of the building to which, after making a reasonable effort to do so, the landlord cannot get access.^[22]

Parties to proceedings

8.13      In addition to the contract-holder, permitted occupiers may also bring proceedings^[23] against the landlord for breach of the repairing obligations.^[24]

Enforcement

8.14      A general provision empowers a court, in any proceedings for breach of a repairing obligation under an occupation contract, to order specific performance of the obligation. This overrides any equitable rule limiting the application of the remedy.^[25]

8.15      For these purposes, the repairing obligation includes not only the landlord's obligations set out above, but any other obligations to repair, or to keep or deliver up in repair, or to maintain, renew, construct or replace any property, and obligations to keep any property fit for human habitation however expressed.^[26]

Waste and tenant-like user

8.16      Common law principles relating to waste and tenant-like user do not apply to occupation contracts.^[27] Obligations to be imposed on the contract-holder are set out as supplementary or additional terms in the contract. By definition they cannot conflict with the fundamental terms discussed above.

IMPROVEMENTS

8.17      Tenants of local authorities have for some years had a right to improve their property. We understand that the statutory provisions conferring this right have not worked well in practice. We have not included specific provision in the Bill on any right to improve as we consider that the appropriate authority may wish to look more closely at the underlying policy.

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Note 1    Repairs are discussed in Part 8 of Renting Homes (2003) Law Com No 284.    [Back]

Note 2    Landlord and Tenant: Responsibility for State and Condition of Property (1996) Law Com No 238.    [Back]

Note 3    (2003) Law Com No 284.    [Back]

Note 4    These apply to all occupation contracts, save fixed term contracts for seven years or more: cl 43(1).    [Back]

Note 5    As defined in the Housing Act 2004: cl 43(7).    [Back]

Note 6    Cl 43(1).    [Back]

Note 7    (1996) Law Com No 238.    [Back]

Note 8    Cl 43(2). Service installations are those for the supply of gas, water, electricity, sanitation, space heating and heating water: cl 43(7).    [Back]

Note 9    Cl 43(4).    [Back]

Note 10    Cl 43(5).    [Back]

Note 11    Cl 43(6).    [Back]

Note 12    Cl 46(2).     [Back]

Note 13    Cl 44(1).    [Back]

Note 14    Cls 44(2)(a) and (4). Where the premises are part only of a building, the landlord is not required to rebuild or reinstate any other part of the building in which they have an estate or interest, where the damage or destruction is similarly caused: cl 44(3).    [Back]

Note 15    Cl 44(2)(b).    [Back]

Note 16    Cl 44(5).    [Back]

Note 17    Lack of care means a failure to take proper care of the premises or the common parts that the contract-holder is entitled to use: cl 45(3).    [Back]

Note 18    Cls 45(1) and (2).     [Back]

Note 19    Cl 46(1). This restates the current law on the need for the landlord to have notice of the want of repair. If a landlord transfers their interest in the premises to another, and before the transfer the original landlord is aware that works or repairs are necessary, the new landlord is treated as becoming aware of the need on the date of the assignment, but not before: cls 46(3) and (4).    [Back]

Note 20    Cl 47(1).    [Back]

Note 21    Cl 47(2).    [Back]

Note 22    Cls 47(3) and (4).    [Back]

Note 23    Limited to proceedings in respect of personal injury or loss of or damage to personal property: cl 48(3).    [Back]

Note 24    Cl 48. A lodger must be allowed to reside in the premises in accordance with the occupation contract and a sub-holder must have a sub-occupation contract made in accordance with the terms of the original occupation contract: cl 48(2). This formulation is designed to avoid some of the issues that can arise from the application of the principle of privity of contract.    [Back]

Note 25    Cl 49(1).    [Back]

Note 26    Cl 49(2).    [Back]

Note 27    Cl 50.    [Back]

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