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Express terms: disrepair

This content applies to England & Wales

Express terms in tenancy agreements that relate to repairing obligations.

Wording of the agreement

Section 9A (fitness for human habitation of dwellings) and section 11 (landlords' repairing obligations) of the Landlord and Tenant Act 1985 implies obligations upon landlords to ensure their properties are in good conditions into all tenancy agreements. A landlord cannot avoid these obligations through express contractual terms.[1]

A tenancy agreement should be checked to see if it contains express obligations that go beyond the implied terms above. A common sense approach is required if the wording of a term governing repairing obligations is open to interpretation.[2]

A tenancy agreement may contain a clause which allows for the partial or total suspension of the rent where the conditions specified in the clause are met.[3]

Notice requirement

Even at common law, a landlord is not be liable until s/he has been put on notice of the problem in the dwelling and has failed to remedy within a reasonable time thereafter.[4] It is the landlord's knowledge of the defect that is important and it is not always necessary for the tenant to have given notice in order for the landlord to be considered liable - see Notice requirement

Insurance and subrogated claims

If under express terms of the tenancy agreement, the landlord is required to take out insurance against damages to the property, and it is clear that there is a common intention that the insurance is taken out to protect both the landlord and the tenant against certain risks (eg fire, water damage), then the tenant is exonerated from liability even s/he was responsible for causing the damage to the property by negligence or breach of contract - in such cases, if the landlord has been indemnified by the insurance, s/he cannot bring a subrogated claim for damages against the tenant.[5]

Subrogated claims are often made by the insurer on behalf of the landlord in order to recover money paid out to under the insurance policy. Such claims can be brought against the tenant in cases where the landlord take out an insurance policy separately from the tenant and for her/his only benefit.

[1] ss.9A(4) and 12(1)(a) Landlord and Tenant Act 1985.

[2] Holding and Barnes plc v Hill House Hammond [2001] EWCA Civ 1334.

[3] Baillie v Savage [2018] EWHC 3035 (Ch).

[4] Makin v Watkinson [1870] LR 6 Ex 25; O'Brien v Robinson [1973] AC 912; Morris v Liverpool (1987) 20 HLR 498; Earle v Charalambous [2006] EWCA Civ 1090.

[5] Mark Rowlands Ltd v Berni Inns Ltd [1985] 3 ALL E.R. 473; Fresca-Judd v Golovina [2016] EWHC 497 (QB).

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