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What Is a Landlord's Duty to Repair Defects?

on Tuesday, 24 October 2017.

The recent Court of Appeal case of Dodd v Raebarn Estates Ltd and others [2017] EWCA Civ 439; has considered this issue and landlord's obligations under the Defective Premises Act 1972 (DPA).

What Happened in the Case?

The case involved a mixed residential and commercial use building. Whilst staying in a residential flat in the building, Mr Dodd fell down the staircase from the first floor and suffered a major brain injury. Unfortunately, Mr Dodd died as a result of the injuries he sustained. Mr Dodd's wife alleged that defects in the staircase and the lack of a handrail were responsible for her late husband's fall.

Raebarn Estates Ltd, the freehold owner of the building, granted a 125 year lease of the upper residential part of the building to the head lessee. The head lessee undertook renovation works and, as part of the renovation, the head lessee obtained planning permission for the replacement of the staircase in question. The plans showed the staircase as having a handrail but when built, the staircase did not have a handrail and the stairs were steeper than shown on the plans. This was accepted by experts to be a breach of building regulations.

Following a complicated case history, the question asked of the Court of Appeal was whether Raebarn Estates Ltd, as the freehold owner, was potentially liable under section 4 of the DPA. Section 4 of the DPA deals with defects arising out of a lease and imposes a statutory duty of care on the landlord where he, either has a duty to repair, or a right of entry to carry out repair of the premises.

So, Did the Absence of the Handrail Amount to a Defect Under Section 4 of the DPA?

Although Raebarn was not liable for repair, under the headlease, it had a right of entry to repair. Mrs Dodd sought to rely on this obligation to claim that Raebarn was liable for the injuries sustained by her husband. Under section 4 of the DPA, before an obligation to repair arises, the property must be in disrepair. The Court of Appeal held that the removal of the staircase did not amount to a breach of the repair covenant in the headlease and therefore the right of entry to repair was not required.

Further, it was held that a duty to repair could not be equated with a duty to put into a safe condition. Despite the staircase being steep with no handrail (which probably made it unsafe), it was not in disrepair and Raebarn was not liable to Mrs Dodd.

Does This Apply to Commercial Lease Premises?

Whilst the case involved a residential property, many commercial leases include covenants relating to compliance with the Defective Premises Act 1972. The case serves as a useful reminder that a landlord can be found liable for failure to repair and maintain even if it has not had notice of the defect.

A commercial landlord can limit its liability by carrying out the following steps:

  • Carrying out regular inspections (in accordance with the lease) and serving a notice on the Tenant if there is disrepair

  • If the tenant fails to comply with a notice of disrepair, the lease will usually permit a landlord can usually carry out the works and charge the amount incurred to the Tenant

  • whilst compliance with Building Regulations and other statutory obligations are a tenants responsibility when they carry out works (such as refurbishment), the landlord should check that works carried out by a tenant have been in accordance with the plans and specifications and signed off by the relevant authorities 

If you require advice in relation to duty to repair or a landlords obligations please contact Lorna Graham in our Property Law team on 0117 314 5409.

 

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