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Defective Premises Act

Defective Premises Act 1972

Section 4 of the 1972 Act:
    (1) Where premises are let under a tenancy which puts on the landlord an obligation to the tenant for the maintenance or repair of the premises, the landlord owes to 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.

    (2) The said duty is owed if the landlord knows (whether as the result of being notified by the tenant or otherwise) or if he ought in all the circumstances to have known of the relevant defect.

    (3) In this section "relevant defect" means a defect in the state of the premises existing at or after the [commencement of the tenancy] and arising from, or continuing because of, an act or omission by the landlord which constitutes or would if he had had notice of the defect, have constituted a failure by him to carry out his obligation to the tenant for the maintenance or repair of the premises…

    (4) Where premises are let under a tenancy which expressly or impliedly gives the landlord the right to enter the premises to carry out any description of maintenance or repair of the premises, then, as from the time when he first is, or by notice or otherwise can put himself, in a position to exercise the right and so long as he is or can put himself in that position, he shall be treated for the purposes of subsections (1) to (3) above (but for no other purpose) as if he were under an obligation to the tenant for that description of maintenance or repair of the premises; but the landlord shall not owe the tenant any duty by virtue of this subsection in respect of any defect in the state of the premises arising from, or continuing because of, a failure to carry out an obligation expressly imposed on the tenant by the tenancy.


Some cases

Carbon monoxide poisoning

Sykes v Harry
[2001] EWCA Civ 167

This case concerned a gas fire that the landlord never serviced. The tenant suffered brain damage as a result of carbon monoxide poisoning. The tenant had not given the landlord notice of the defect. It was held that to establish liability under s4 it is not necessary to show that the landlord has been given notice of the defect. If he is under a duty to repair he is also under a duty by reason of s4 to take reasonable care. However, the tenants damages were reduced by 80% by reason of his contributory negligence in failing to report the defects.

Damage caused by upstairs tenant

Wadsworth v Nagle
[2005] EWHC 26 (QB)

C was leaseholder of a flat. The flat above was occupied by another leaseholder. The defendant was the landlord. The sealant at the edge of the bath upstairs was defective so that water leaked into Cs flat damaging the ceilings. C complained to L about the problem but it was not resolved and C claimed damages from the landlord relying upon s 4 of the 1972 Act.

Held: As a matter of construction of the lease of the upstairs flat there was no express or implied right to enter to carry out the repairs. Thus, s4 did not require L to be treated as if he were under an obligation to effect the repairs to the upstairs flat. The claim was dismissed as was the appeal.

Hazards in the absence of disrepair

Alker v Collingwood Housing Association
[2007] EWCA Civ 343

Summary

Section 4 of the 1972 Act does not give rise to a "duty to make safe" where there is no disrepair. There has to be some disrepair before a duty under the Act can arise.

Facts

The claimant was injured when she put her hand onto the window of the front door to open it. The glass broke and she put her left are through the pane resulting in serious injury to her arm. The glass panel in the door was not safety glass but ordinary annealed glass. Before the accident the glass was not in any state of disrepair. "However, the use of ordinary annealed glass in doors presents a safety hazard and that has been understood since at least 1963" (para 3). The judge at first instance held the landlord liable under s4.

Decision on appeal

His decision was overturned on appeal.

Laws J at para 14:
    "A house may offer many hazards: a very steep stairway with no railings; a hidden step; some other hazard inside or outside the house of the kind often found perhaps in particular older properties. I do not think it can be said that the Act requires a landlord on proof only of the conditions I have described for the application of section 4 to make safe any such dangerous feature."
And at para 16:
    "[The claimant's argument] would transform section 4 from a statutory embodiment of the landlord's repairing covenant intended to protect persons, not only the tenant, against the effects of want of repair or maintenance into something else altogether; in effect, a statutory warranty that the premises are reasonably safe.

Relevant defect

Steep staircase

Dodd v Raebarn Estates Ltd
[2017] EWCA Civ 439


Summary

A freeholder of a building was not liable under s4 of the Defective Premises Act 1972 where a man had died after falling down a staircase in the building. The staircase was steep, with no handrail, but that did not amount to a “relevant defect” for the purposes of s4(3).

Facts

D and his wife, W, were staying at a first floor flat. D was walking downstairs when he lost his footing on the lowest flight and fell, suffering injuries from which he died.

The respondent freeholder was F. There was a head lease of the upper parts of the building (including the staircase and entrance hall) to HL. Underleases of the individual flats in the upper parts of the building had also been granted, and P was the underlessee of the flat in which D and W had stayed. The relevant clauses of the head-lease provided as follows:
  • Under cl.3(3), HL was required to keep the premises in good and substantial repair and to remedy any inherent defect to the premises;
  • Clause 3(7) enabled the landlord to enter the premises and repair, reinstate or decorate the premises should the tenant default on the covenants contained in cl.3(3).
  • Clause 3(8) required the HL to execute all works required by Acts of Parliament, local bye-laws and regulations.
  • Clause 3(9) prohibited alterations to the structure of the premises without the landlord’s consent and
  • Clause 3(12) required the HL to comply with the requirements of all planning permissions relating to the property.
Some years ago HL had obtained planning permission to reconfigure part of the building, including the construction of a new staircase. Permission was granted for the reconfiguration “as shown on the submitted drawings” which showed a handrail and a maximum rise and minimum tread to the new stairs. It appeared that the new staircase did not have the stated handrail and the stairs were steeper and narrower than specified. It was accepted that the freeholder had given written consent to the alterations as required under cl.3(9) and that the original replaced staircase had been equipped with a handrail. The lack of a handrail and the steepness of the stairs breached building regulations in force at the time.

W brought claims against F, HL and P. Master Leslie granted summary judgment in favour of F on the ground that her claim against it had no real prospect of success.

An appeal by W from that decision was dismissed ([2016] EWHC 262 (QB)), and the only surviving ground on this second appeal to the Court of Appeal was the question of whether F was potentially liable for D’s injuries under s.4 Defective Premises Act 1972.

Decision

The Court of Appeal dismissed W’s appeal. The Court held that:

Section 4(1) of the Act could not apply directly, the liability for repair resting on HL and not F. But, if s4(4) of the Act were to apply to D, then he would be within a class of person to whom the s.4(1) duty is owed.

It was clear that the phrase “maintenance or repair” in s4 is to be interpreted according to its meaning in the general law of landlord and tenant, and does not extend to defects in the general sense. The reach of the duty under s4 is no longer than the reach of the covenant to repair owed (or treated as being owed) by the landlord in any particular case. A duty to repair cannot be equated with a duty to make safe. The difficulty with W’s argument was that it did not take account of the schedule of the headlease as a whole. Clause 3(3) stood together with clause 3(9) which permitted alterations with the freeholder’s consent. Where a lease expressly contemplated alterations, the mere fact that part of the leased property was removed as part of a scheme of alterations did not without more amount to a breach of a repairing obligation.

It had to be assumed that the freeholder consented to the alterations under clause 3(9). It could not plausibly have been argued that the removal of the old staircase amounted to a breach of clause 3(3) when the removal was an integral part of the scheme of alteration to which the freeholder had expressly consented. In those circumstances, the right to enter under clause 3(7) could not have been triggered by the removal of the staircase.

Assuming that the freeholder had consented to the scheme shown in the plans, the eventual staircase differed from the scheme in the lack of a handrail and the steepness of the staircase. But that would have been a breach of clause 3(9) and not 3(3). It may also have been a breach of other provisions, but none of them related to repair and did not empower the freeholder to enter the premises under clause 3(7).

Even if the judge had been wrong to reject an alternative hypothesis that the new staircase had a handrail which was subsequently removed, an appeal court should be slow to interfere with such an evaluation. And, even if the judge had been wrong, the test was not one of functionality. Part of a building may not function adequately but it did not follow that it was in disrepair and, if there was no disrepair, the question of compliance with building regulations did not arise.

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