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Landlord and builder duty of care under the Defective Premises Act 1972

This content applies to England & Wales

Actions that may be taken where a problem occurs with the construction, design or planning of a property, and where a duty of care is breached.

Duty of care in connection with new dwellings

Under section 1 of the Defective Premises Act 1972, people carrying out work in connection with the provision of a new dwelling owe a duty to do the work in a workmanlike, professional manner, with proper materials, so that the dwelling is fit for habitation.

The duty under section 1 applies to work carried out on or after 1 January 1974 and extends to anyone engaged in or connected with the work, for example landlords, builders, architects, surveyors, and specialist subcontractors.

The term 'provision of a dwelling' extends to newly built properties, conversions and enlargement of existing buildings, as long as a new dwelling is provided.[1]

The courts have held that the duty does not extend to approved inspectors in the performance of their statutory functions to ensure compliance with building regulations.[2]

Licensees are probably not covered because they have no interest in the property. They usually have only a personal right to occupy, unless they can show they have an equitable interest. A person may have an equitable interest if, for example, they have contributed to the purchase of the property financially but are not the legal owner.

Fit for habitation

The term 'fit for habitation' is not defined in the Act and it cannot be assumed that it has the same meaning as 'fit for human habitation' of section 604 of the Housing Act 1985. It is probable that the common law definition will apply. This has been defined by case law and includes:

  • safety for occupation
  • sufficient water supply
  • free from infestation by bugs or pests
  • adequate drainage
  • free from infection

This is not an exhaustive definition. It will depend on the circumstances of an individual case whether a particular defect renders the accommodation unfit for habitation.

Extent of the duty

The duty in section 1 is a strong one. The person who carries out or is connected with the work must ensure that the work is done properly. They will not be able to argue, as a defence, that it was 'reasonable' to believe that the work was adequate.

The duty is owed to:

  • the person for whom the property was provided
  • subsequent tenants and owners, and
  • anyone else who has a legal or equitable interest in the property

The duty is also applicable in cases of omission when carrying out works, for example failing to incorporate a damp proof course in a newly built wall, or if that work has been carried out badly.[3] If the work for the provision of a dwelling was part of a larger development carried out under the same contract, it was arguable that all work done in the development was done in connection with the provision of the dwelling so that work carried out to common parts, which rendered the dwelling unfit for habitation, would be covered by the duty.[4]

The occupier, or other person with a legal or equitable interest in the property, does not have to notify the person who carried out or is connected with the work of the defect in order for them to be liable.

It remains uncertain whether an action can only be taken in the event of personal injury/damage to the property or if economic loss, that is reduced resale value for owners, is sufficient.

Extension works or refurbishment

The Court of Appeal held that section 1 is only directed to the provision of a new dwelling. For the duty to apply to extension works or refurbishment carried out on an existing building, the work must be so substantial as to constitute the 'provision of a new dwelling'.[5] The Court said that the extent and cost of the works would not be decisive. There might be cases where a small amount of work would be required to create a separate dwelling which would fall within section 1, but there could be very extensive works to a house which would not change its identity.

Exception to section 1 duty

The duty under section 1 of the Defective Premises Act 1972 does not apply to properties built or first sold under the terms of a scheme approved by the Secretary of State that provides insurance cover for defects in the state of the building.[6] The only scheme currently approved is that of the National House Building Council, which covers virtually all private residential developments except conversions. The exempt properties should be covered by a warranty and insurance policy. In effect this means the duty in the private sector is only applicable to cases of conversions and alterations where the work is so substantial to constitute the 'provision of a new dwelling'.

Duty of care under section 3 Defective Premises Act 1972

Under section 3 of the Defective Premises Act 1972, a duty of care is owed by people who carried out any repair, maintenance, construction, demolition or other work in relation to a property, or by people who are connected with such work, including landlords, builders, architects, surveyors and specialist subcontractors, for work that was carried out prior to the disposal or letting of the property.

The common law rule of immunity for landlords in relation to damage caused by defects in work done prior to the start of a letting was abolished with effect from 1 January 1974, when the Act came in to force.

Extent of the section 3 duty

The duty of care under section 3 is owed to 'anyone who might reasonably be expected to be affected by the defects in the state of the premises'. This can include tenants, homeowners, members of the household and visitors.

The duty only relates to tenancies and acts of disposal that started on or after 1 January 1974.

Duty of care under section 4 Defective Premises Act 1972

Under section 4 of the Defective Premises Act 1972, a landlord who has an implied or express obligation to repair or maintain a property, or has a right to enter the property to carry out certain repairs, owes a duty of care to ensure that all people who could reasonably be affected by 'relevant defects' in the state of the premises are reasonably safe from personal injury or damage to their property resulting from the defects. This is a fact specific question which must be answered in the context of all the circumstances of the individual case.

The landlord's duty is owed to:

  • the tenant
  • members of the tenant's household, and
  • visitors to the property

It is uncertain whether an action arises only if personal injury or damage to the property has occurred, or if economic loss is sufficient.

When the duty of care is triggered

The duty is triggered if the landlord 'knows or ought to know of the relevant defect' regardless of whether or not the occupier had informed the landlord of it.[7] This is in contrast to section 11 of the Landlord and Tenant Act 1985 where the landlord is not liable to carry out a repair until they have been put on notice of the need for the repair.

Whether a landlord is under a duty to implemented a system of regular inspections of the premises in order to comply with the section 4 duty is a question of fact and must be determined in light of all the circumstances of the individual case. This question would arise when considering whether the landlord ought to have known of the defect. As such, while the question of having a continuing duty to inspect premises in order to ensure that defects do not develop is not a specific statutory requirement, it may be relevant if such an inspection would reveal a likely defect.[8]

Relevant defect

'Relevant defects' are items of disrepair arising or continuing on or after 1 January 1974. The section 4 duty does not extend beyond the landlord's repairing obligations, for example in the case of dampness caused by condensation.[9] It does not apply to design defects, or to defects due to the tenant's failure to meet a repairing obligation under the tenancy agreement, or if the defect  is latent and undiscoverable[10] A duty to repair what is in disrepair is not the same as a duty to make improvements or even to make safe.[11]

Reasonable care

The landlord's duty under section 4 is to take such care as it is reasonable. This means that the duty is not owed if the personal injury or damage to property is not reasonably foreseeable or it could not reasonably have been prevented.

Section 4 claims

Where damage or injury results from a landlord's failure to meet repairing obligations, actions under the Defective Premises Act 1972 can be brought alongside actions in Negligence and actions for breach of Contractual rights including section 11.

All claims are fact specific and whether the landlord is liable will depend on the circumstances of each individual case.

Examples of landlord's liability under section 4

In the following cases the landlord was found liable:

The floor of a property collapsed which resulted in injury to a tenant's visitor. The tenant had not informed the landlord of any defect. The landlord was found liable because it had not inspected the floor when it should reasonably have known from the floor's age and construction that it could be unsafe and should therefore have taken steps to check its stability.[12]

A tenant was injured by a fall from the paved area in the garden of the tenant's property. The landlord had not built the paved area and the tenant had not reported any defect. However, the landlord had an express right to enter the property to carry out repairs. The landlord was found liable because the premises included the paved area.[13]

A visitor to a tenanted property was injured when the door-knocker came away as she was pulling the front door closed. The landlord was found liable because it was deemed to have known of the use of door-knockers in this way but had not maintained them.[14]

A tenant moved into a council home and just over a month later, she fell down the stairs because a piece of wood broke off the leading edge of one of the steps. She brought an action for personal injury damages. The Court of Appeal held that given the age of the house, and the fact that the accident happened so soon after the tenant had moved in, the landlord 'ought in all the circumstances to have known of the relevant defect' and have taken the precaution of carrying out a pre-tenancy inspection.[15]

A workman suffered a fall and an injury due to the absence of banisters. The tenant had removed the banisters 20 years previously. During the intervening period the landlord's staff and contractors had visited the property many times, and it was held liable as it knew, or ought to have known of the relevant defect.[16]

The tenant of a council house was injured while mowing her front lawn when she stood and partially fell through a defective drain cover over a sewage inspection chamber in the garden.[17]

Examples where landlord was not liable under section 4

In the following cases the landlord was not found liable:

Protruding pipes in the tenant's flat burnt the tenant's child. However, the problem would not have been any more foreseeable to the landlord than to the tenant, and it was up to the tenant to take reasonable care as well as the landlord.[18]

The landlord had an express right to enter the premises to remove any items left at the end of the tenancy. This right only arose at the end of the tenancy and accordingly the landlord was found not to have a duty to remove a paving slab which had caused injury to the tenant's son. This was neither work of repair nor work of maintenance. [19]

The landlord had painted the front steps of a property with unsuitable paint and rendered them more slippery. However, the landlord did not owe a duty of care to her tenant who had slipped and sustained injuries because the steps could not be said to be in a state of disrepair.[20]

In two separate cases[21] where a flight of stairs lacked a bannister rail, and visitors to the properties fell and injured themselves, in one case fatally, the landlord was not liable under the Defective Premises Act because the stairs were not in disrepair. These cases were distinguished from the case concerning missing bannisters above, because in that case the tenant had removed the bannisters leaving one side of the stairs as open space, whereas in these two cases there had never been a bannister rail in the period since the property was rented, or possibly at all. Even where the lack of a handrail was a breach of Building Regulations and undoubtedly made the stairs potentially dangerous, the Court held that it none the less did not constitute a relevant defect within the Defective Premises Act as there was no link between the absent handrail and any disrepair.[22]

[1] s. 1 Defective Premises Act 1972; Jenson v Faux [2011] EWCA Civ 423.

[2] Lessees and Management Company of Herons Court v (1) Heronslea Ltd (2) TNV Construction Ltd (3) National House Building Council (4) NHBC Building Control Services Ltd [2019] EWCA Civ 1423.

[3] Andrews v Schooling (1991) 23 HLR 316, CA.

[4] Rendlesham Estate Plc and others v Barr Ltd [2014] EWHC 3968 (TCC).

[5] Jenson v Faux [2011] EWCA Civ 423.

[6] s.2 Defective Premises Act 1972.

[7] Sykes v Harry [2001] EWCA Civ 167.

[8] Rogerson v Bolsover DC [2019] EWCA Civ 226.

[9] McNerny v Lambeth LBC (1989) 21 HLR 188, CA.

[10] Lafferty v Newark & Sherwood District Council [2016] EWHC 320 (QB).

[11] Sternbaum v Dhesi [2016] EWCA Civ 155; Alker v Collingwood Housing Assocation [2007] EWCA Civ 343.

[12] Clarke v Taff Ely BC (1984) 10 HLR 44 , QBD.

[13] McAuley v Bristol CC [1991] EWCA Civ 2.

[14] Marsden v Havering LBC [1983] 11 March, unreported, CA.

[15] Morley v Knowsley BC, 1998, Legal Action 22, CA.

[16] Hannon v Hillingdon Homes Ltd [2012] EWHC 1437 (QB).

[17] Rogerson v Bolsover DC [2019] EWCA Civ 226.

[18] Ryan v Camden LBC (1982) 8 HLR 75.

[19] Boldack v East Lindsey DC (1999) 31 HLR 41, CA.

[20] Drysdale v Hedges [2012] EWHC (QB), [2012] All ER (D) 345 (Jul).

[21] Dodd v Raeburn Estates Ltd & Ors [2017] EWCA Civ 439; Sternbaum v Dhesi [2016] EWCA Civ 155.

[22] Sternbaum v Dhesi [2016] EWCA Civ 155.

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