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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 11 of the Landlord and Tenant Act 1985 implies an obligation upon landlords to carry out certain repairs into all tenancy agreements, with limited exceptions. A landlord cannot avoid these obligations through express contractual terms.[1]

A tenancy agreement should be checked to see if it contains obligations that fall outside section 11. 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

A landlord is not liable to carry out any repair until s/he has been put on notice of the need for repair and has failed to carry out the repair 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. For full details see the page on Notice requirement.

Breach of express terms

If an express term is breached, action should be taken for damages for breach of contract and for specific performance of the term - see the section on Taking action on disrepair. An order for specific performance is where the court forces the person liable to carry out the repairs.

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] s.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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