Landlords owe a duty of care to their tenants to make sure, as far as is reasonably possible, to be sure a property is safe, both at the commencement and during the course of a tenancy.
This Court of Appeal case in 26 February 2019 relates to a council tenancy, though its implications also apply to private tenancies.
These guidelines are based on English law. They are not a definitive interpretation of the law. Every case is different and only a court can decide, so always seek expert advice before taking action or not.
The tenant Mrs Rogerson suffered serious injury when a corroded inspection cover in her garden collapsed when she stood on it while mowing the lawn, resulting in her partly falling into the sewage drain.
Mrs Rogerson sued her landlord for personal injury, loss of earnings and damages.
The question for the courts to decide was, can a landlord be held liable in these circumstances? A complicating factor was that the ownership and liability for repair of the drain cover was with the water company.
The Court of Appeal found that indeed liability did rest with the landlord, even though section 4 of the Defective Premises Act 1973 does not place an obligation on a landlord to carry out regular inspections, but subsequent regulations may – see below.
The landlord had in fact carried out an inspection prior to the letting, and again a few months before the accident. However, the court said that the landlord had failed to take reasonable care as the defect with a corroded cover could easily have been discovered.
But the counter argument goes, if the defect was not known, how could the landlord be held liable especially if there was no duty to inspect under section 4 of the Act? In the lower court, the judge had held that the landlord still had a duty to ensure the property was reasonably safe.
This conclusion was upheld by the court of appeal, the question here being whether the inspections had been carried out satisfactorily to comply with a reasonable duty of care. The judge felt that the evidence put forward did not establish firmly that the landlord had met its duty of care when doing the inspections. It also stated that a landlord’s duty of care to inspect included garden areas of a property. Mrs Rogerson’s damages claim was allowed.
It remains the case therefore that whether a system of regular inspections is required will depend on the specifics of the case and the known or likely risks at the property, so the court concluded that “an overly restrictive approach as to the extent of section 4 would be contrary to its purpose.”
Landlords have a general duty of care to make sure the properties they rent are kept in a safe condition for their tenants. Not all tenant injuries are the fault of the landlord though, so it is important to know the difference and your responsibilities to avoid any expensive and damaging personal injury claims.
Negligence and a landlord’s duty to tenants
For a landlord to be deemed liable for an injury to a tenant, it must be shown that they were negligent in some way. Negligence is a legal concept that holds individuals accountable for any harm they may cause to other parties. To prove that a landlord has been negligent, a tenant is required to prove that the landlord failed to uphold their duty of care towards the them or others – which then resulted in an injury.
Duty of care, or ‘standard of care’, in this respect refers to the responsibilities of the landlord in terms of maintaining a safe property. Landlords are expected to make sure their property is safe to a reasonable standard.
If a landlord fails to meet the reasonable standard of care test then they could be found to be liable for any injuries caused to tenants as a result.
The big question here for landlords is, what is meant by ‘reasonable care’? To determine if a landlord has acted reasonably, the courts will ask two questions:
1 – What would the average, reasonable landlord do in similar circumstances?
2 – Has the landlord demonstrated at least that average level of reasonable care?
In some cases, a court may find that the standard of care expected of a landlord should be greater than the average or ‘reasonable’ level. For instance if young children are involved, as they are less able to assess risks and avoid danger. Similarly, if you are renting to people who do not speak English as a first language it could be argued that, as the landlord, it is your responsibility to ensure warning signs are provided in the tenants’ language.
Similarly, a landlord could be held responsible for failing to install smoke and carbon monoxide alarms in the property. New regulations regarding smoke alarms are now in force in the UK, requiring landlords to fit working smoke alarms on every storey of a rental property and Carbon Monoxide alarms in any room containing solid fuel appliances that is used as living accommodation. For more information read our guide: Are you properly alarmed?
Physical injuries to tenants
A landlord could be held liable for a physical injury to a tenant that was caused by the landlord’s failure to maintain the property to a reasonably safe level, or to make repairs in a timely fashion. For example, if a staircase has a faulty handrail and the tenant is injured as a result of falling down the stairs then the landlord could be found negligent.
However, this would only apply if the landlord was notified of the hazard and had a reasonable time to fix it.
The Defective Premises Act 1972 states the legal obligation for landlords to prevent their tenants from suffering injury from property defects. Some of the more common defects to be aware of include:
- Damaged floorboards
- Worn/loose carpets
- No handrails/damaged handrails on staircases
- Loose plaster – particularly on ceilings
Landlords are also responsible for any defects in communal areas of rental properties as well as those in outdoor areas e.g. potholes on a driveway, paths etc.
What damages can tenants claim for?
If a landlord is found to have acted negligently and therefore liable for an injury suffered by a tenant, then the tenant can pursue a personal injury claim for compensation.
Depending on the nature of the injury and the individual circumstance, a compensation claim could include General Damages and Special Damages.
These relate directly to the pain, suffering and ‘loss of amenity’ caused as a direct result of the injury. This could include physical and/or emotional pain and suffering, loss of physical or mental ability, loss of quality of life and so on.
These deal directly with the financial impact the injury has had on the tenant, for example: loss of earnings, loss of earning potential treatment costs, rehabilitation costs etc…
Fitness for Human Habitation
On the 20th December 2018 the Fitness For Human Habitation Bill received Royal Assent and is now the law under the Homes (Fitness for Human Habitation) Act 2018
The Act revives a clause already existing in the Landlord and Tenant Act 1985, which requires all rented homes to be ‘fit for human habitation’ at the start and throughout a tenancy.
The Act also adds legal repair responsibilities for landlords not covered in the L&T Act 1985 including damp caused by design defects (lack of ventilation) rather than disrepair, and infestation (rodents, insects, bed bugs). It also adds to the legal requirements already pre existing within the Housing, Health and Safety Rating System (HHSRS) introduced in the Housing Act 2004, in force since 2006.
Under the new Act landlords of both social and privately rented properties must make sure that their properties meet certain safety standards at the beginning and throughout a tenancy. If they fail to do so tenants have the right to take direct legal action. This can result in fixed financial penalties of up to £30,000 plus landlord banning orders, including for life.
Health & Safety Hazards:
It means that 29 HHSRS hazards must be checked by an inspection (risk assessment), be assigned a risk category (where applicable), and then any necessary remedial action taken to address and risks identified.
• damp and mould growth
• excess cold
• excess heat
• asbestos and MMF
• presence of biocides
• carbon monoxide & fuel combustion products
• presence of lead
• presence of radiation
• un-combusted fuel gas
• volatile organic compounds
• crowding and space
• entry by intruders
• inadequate natural lighting
• excessive exposure to noise
• domestic hygiene
• pests and refuse
• food safety
• drainage problems
• water supply
• falls associated with baths
• falls on level surfaces
• falls associated with stairs and ramps
• falls between levels
• electrical hazards
• uncontrolled fire, flames, hot surfaces and materials
• collision and entrapment
• poor ergonomics
• structural collapse and falling elements
These risks are then categorised under the following headings:
Risk Category 1 : Hazard is that where the most serious harm outcome is identified, for example, death, permanent paralysis, permanent loss of consciousness, loss of a limb or serious fractures and therefore is best rectified immediately.
Risk Category 2 : Still a hazard needing remedying, although without the need for urgency albeit still needing correction at some time.
Risk Category 3 : Are those people who could be most affected by the hazard, and importantly, they do not have to be occupants of the property, they could also be any visitor exposed to the hazard.
A residential landlord’s safety responsibilities
To keep the property safe and free from health hazards – and Coronavirus has not changed these obligations – you must make sure that any necessary checks happen safely.
- make sure gas equipment they supply is safely installed and maintained by a Gas Safe registered engineer
- have a registered engineer do an annual gas safety check on each appliance and flue
give you a copy of the gas safety check record before you move in, or within 28 days of the check
- make sure the electrical system is safe, for example sockets and light fittings
all appliances they supply are safe, for example cookers and kettles
- provide a smoke alarm on each storey and a carbon monoxide alarm in any room with a solid fuel burning appliance (for example a coal fire or wood burning stove)
- check you have access to escape routes at all times
make sure the furniture and furnishings they supply are fire safe
- provide fire alarms and extinguishers if the property is a large house in multiple occupation (HMO)
What should landlords do to reduce their own risks:
- Carry out a document risk assessment prior to the commencement of a tenancy – this is not as onerous as it may sound, a simple checklist is often all that’s required, but you need the documentary evidence to show it’s been carried out.
- Carry out documented in-tenancy inspections – this is a sensible precaution. Tenants can get up to all sorts of things, including turning properties into cannabis farms – you need to check otherwise your insurance could be invalidated.
- Make sure you have an adequate Landlord’s Insurance Policy covering for accident risks and personal injury – these claims can be financially enormous.