1. University of Exeter Landlord’s Obligations Naomi Cunningham & Katherine Breckin 18 June 2013

2. www.michelmores.com University Policy 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. 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.

3. www.michelmores.com Overview 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

4. www.michelmores.com 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!

5. www.michelmores.com 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

6. www.michelmores.com 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”

7. www.michelmores.com Terms inferred In the absence of an express obligation, it’s possible to infer a repairing obligation from conduct Murphy v Hurly (1922)

8. www.michelmores.com 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

9. www.michelmores.com 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

10. www.michelmores.com 1 st 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’

11. www.michelmores.com 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

12. www.michelmores.com 2 nd 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

13. www.michelmores.com 3 rd Exception Licences Courts may imply terms as to fitness into contractual licences Wettern Electric Ltd v Welsh Development Agency (1983)

14. www.michelmores.com Occupier’s Liability Act 1957 Principal importance in relation to third parties As between landlord and tenant – common parts

15. www.michelmores.com 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”

16. www.michelmores.com 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

17. www.michelmores.com 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

18. www.michelmores.com Occupier’s Liability Act 1957 Examples Geary v JD Wetherspoon (2011) Bowen and others v The National Trust (2011)

19. www.michelmores.com 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

20. www.michelmores.com Derogation from Grant Examples Platt v London Underground Ltd (2001) Chartered Trust Plc v Davies (1998)

21. www.michelmores.com 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

22. www.michelmores.com Tenant-Like User “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”

23. www.michelmores.com 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

24. www.michelmores.com Permissive Waste Involves allowing damage to occur Liability only applies to fixed term tenancy Tenants at will or periodic tenants not liable

25. www.michelmores.com 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)

26. www.michelmores.com Residential Occupation Agreements Rent Act tenancy 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

27. www.michelmores.com Assured Shorthold Tenancy Agreement Housing Act 1988 Started after 15 January 1989; –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

28. www.michelmores.com Assured Tenancy Housing Act 1988 Conditions –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.

29. www.michelmores.com 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

30. www.michelmores.com 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

31. www.michelmores.com 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 non- assured college let

32. www.michelmores.com 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

33. www.michelmores.com Landlords’ Obligations Express – look at the agreement Implied –repair –not to cause a nuisance –covenant of quiet enjoyment –covenant against derogation from grant –safe supply of gas –furnishings

34. www.michelmores.com 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

35. www.michelmores.com 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.

36. www.michelmores.com 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)

37. www.michelmores.com 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)

38. www.michelmores.com 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)

39. www.michelmores.com s11(1)(c) LTA 1985 ‘keep in repair and proper working order’ the installations in the dwelling-house for space heating and heating water.

40. www.michelmores.com 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

41. www.michelmores.com s11 LTA 1985 - Exceptions s11(2)(a) ‘tenant like manner’ Tenant is obliged to –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

42. www.michelmores.com 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

43. www.michelmores.com 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 dwelling- house.

44. www.michelmores.com Repair v Improvement The tenant cannot use the provisions within the1985 Act to require the landlord to carry out improvements.

45. www.michelmores.com 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

46. www.michelmores.com 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)

47. www.michelmores.com 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

48. www.michelmores.com 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

49. www.michelmores.com Breach of Covenant for Quiet Enjoyment Potentially treat their lease as having come to an end Injunction Claim for damages

50. www.michelmores.com 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

51. www.michelmores.com Licensors’ Obligations Smith v Nottinghamshire CC (1981) implied covenant for quiet enjoyment

52. www.michelmores.com 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.

53. www.michelmores.com 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.

54. www.michelmores.com 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

55. www.michelmores.com 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’

56. www.michelmores.com 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)

57. www.michelmores.com 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

58. www.michelmores.com 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.

59. www.michelmores.com 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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