Negligence in housing repairs and conditions

A person who is negligent and in breach of their duty of care may have to pay compensation for injuries or damage caused by housing conditions.

This content applies to England & Wales

Definition of negligence

Negligence is a common law tort. Case law has established a general duty not to cause injury or damage because of careless or negligent behaviour. It applies where the damage or injury is foreseeable and reasonable care is not taken.

A person is negligent when they:

  • fail to do something that a reasonable person would have done

  • do something that no reasonable person would have done

The person who has breached their duty of care can be liable to pay compensation if their action or omission has caused damage or injury.

An action for negligence can succeed if the person who has suffered damage or injury can show that:[1]

  • a duty of care is owed to them

  • the duty of care has been breached

  • the breach has resulted in personal injury or damage to property

Reasonableness

The concept of what is reasonable has been developed over the years by case law and depends on the individual circumstances of each case.

Occupiers' liability for negligence

Under section 2 of the Occupiers' Liability Act 1957, the occupier of premises owes a common duty of care to their visitors. The occupier must take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which they are invited or permitted by the occupier to be there.[2]

The Occupiers' Liability Act 1957 refers to the common law meaning of 'occupier'.[3]

The liability occurs where there is injury to someone or actual damage to the property, but it does not cover economic loss caused by the negligence, such as a reduction in the value of a property where a defect has been discovered.[4]

The occupier's duty of care extends to persons present at the premises to exercise a legal duty, even if the occupier has not expressly permitted them to be there[5]

The House of Lords has held that:[6]

  • the occupier is the person who has a sufficient degree of control over premises that they ought to realise that any failure on their part to use care may result in injury to another person who is a visitor or other wise permitted to be there

  • the duty may be owed by more than one person if more than one person has sufficient control of the premises

The  occupier must:[7]

  • have regard to any known vulnerability or disability of a visitor

  • take into account the fact that different visitors may require different degree of care, for example, children might be less careful than adults

In one case, the High Court found that an occupier who knew about the visitor's disability and left a window open resulting in the visually impaired visitor's fall was in breach of their duty of care.[8]

In order to discharge the common duty of care, an occupier must either:

  • eliminate the risk of injury or damage to the visitor

  • warn the visitor about the risk

For a duty of care to extend to people other than visitors, for example to trespassers, the danger has to be due to the state of the premises and not the person's activity.[9] In addition, the problem must have been reasonably foreseeable.[10]

In a case where a tenant sustained injuries falling through a skylight while dancing on the garage roof, the landlord was found not to owe a duty of care. The garage was not included in the tenancy agreement and the tenant had never received permission to go on to the roof. The tenant was trespassing on the garage roof and the danger had arisen from their activity rather than the state of the premises.[11]

Landlord's duty to take reasonable care 

A landlord has a general duty to take reasonable care when carrying out work to a property so as to avoid defects or damage to the property and danger of injury to the occupier.[12] The landlord should use reasonable materials to ensure that any work done is effective.[13]

Negligence can occur where the landlord:

  • has carried out insufficient work

  • is aware of a problem, fails to act and injury or damage results

An example of this is a failure to properly treat an infestation. In the absence of injury or damage, there must be a well-founded fear that a property is dangerous.[14]

A landlord may be liable in negligence if they:

  • are responsible for repairs

  • are aware of damage caused by a third party

  • fail to carry out suitable repairs to prevent damage or loss to the occupier

An example of this is where a landlord failed to adequately secure a broken window and as a result a burglar gained entry to the property.[15]

A local authority that failed to prune trees it was responsible for has been held liable for reasonably foreseeable subsidence damage to a nearby property.[16]

A landlord may also be liable under the Defective Premises Act 1972 if a personal injury or damage to property occurs.

Landlord's liability for common parts

The landlord is liable for the parts of the premises over which they retain control. This includes common parts if there is injury as a result of dangerous defects or disrepair that the landlord negligently fails to make safe.[17]

Case law examples of where the landlord has been found in breach of their obligations in relation to common parts include:

  • failure to take reasonable care to keep lifts in a tower block in working order[18]

  • insufficient action to prevent the communal water supply pipes from bursting, resulting in damage to a tenant's property[19]

  • failure to maintain an entrance path to sheltered housing resulting in injuries to a visitor, despite employing a manager and a caretaker and having a scheme of regular inspections[20]

A  local authority landlord who took reasonable measures to secure a vacant flat upstairs was found not liable for flooding of the tenant's property downstairs caused by burglars who entered the upstairs flat.[21]

No duty of care was owed by a landowner to a tree surgeon who had fallen from a tree on the land while working for an independent contractor.[22]

Negligent construction and design work

Where a property is built negligently, the builder is liable if the negligence causes:[23]

  • personal injury to the subsequent occupiers of the property

  • damage to the property

It will apply to the landlord where they are also the builder.[24]

The liability applies to latent defects, that is those that cause harm with no warning.

A developer, architect or engineer is liable if their work is negligent and results in personal injury or damage to property. Similarly, a local authority can be liable if the injury or damage has arisen from its negligent failure to check work plans for the site or to enforce building regulations.[25] In one case, a local authority was found negligent for the design and building of a flat with a panel of thin glass in an internal wall that broke injuring the tenant.[26]

Surveys and valuations of properties

A property surveyor owes a duty of care to a mortgage lender to prepare a survey report with skill and care. This duty extends to the buyer of the property who relies on the report when deciding whether to proceed with the purchase and cover economic loss.[27] This applies only when the transaction involves ordinary domestic householders purchasing their homes without requesting an independent survey and not to commercial transactions, such as buy-to-let, where it is reasonable to expect buyers to obtain their own independent advice.[28]

Last updated: 16 March 2021

Footnotes

  • [1]

    see, for example, Lugay v Hammersmith and Fulham LBC [2017] EWHC 1823 (QB).

  • [2]

    s.2(2) Occupiers' Liability Act 1957.

  • [3]

    s 1(2) Occupiers' Liability Act 1957.

  • [4]

    Ryan v London Borough of Camden (1982) 8 HLR 75.

  • [5]

    s.2(6) Occupiers' Liability Act 1957.

  • [6]

    Wheat v E Lacon & Co Ltd [1966] A.C. 552.

  • [7]

    s.2(3) Occupiers' Liability Act 1957.

  • [8]

    Pollock v Cahill [2015] EWHC 2260 (QB).

  • [9]

    s.1 Occupiers' Liability Act 1984; Siddorn v Patel & Anor [2007] EWHC 1248 (QB); Buckett (a protected party by his mother & litigation friend Amanda Buckett) v Staffordshire CC [2015] QBD Case No 3SQ 90263.

  • [10]

    Ryan v London Borough of Camden (1982) 8 HLR 75.

  • [11]

    Siddorn v Patel & Anor [2007] EWHC 1248, QBD.

  • [12]

    Birmingham Development Co Ltd v Tyler [2008] EWCA Civ 859.

  • [13]

    AC Billings & Son v Riden [1957] 3 All ER 1.

  • [14]

    Sharpe v Manchester Metropolitan DC (1982) 5 HLR 71.

  • [15]

    Nolan v Liverpool CC [1988] unreported.

  • [16]

    Robbins v Bexley LBC [2012] EWHC 2257 (TCC); see also Berent v (1) Family Mosaic Housing (2) Islington LBC [2012] EWCA Civ 961.

  • [17]

    Taylor v Liverpool Corporation [1939] 3 All ER 329; Cunard v Antifyre Ltd [1933] 1 KB 551.

  • [18]

    Liverpool CC v Irwin [1976] 2 All ER 39.

  • [19]

    Stockley v Knowsley MBC [1986] 279 EG 677 , CA.

  • [20]

    Butcher v Southend-on-Sea BC [2014] EWCA Civ 1556.

  • [21]

    King v Liverpool CC (1986) 18 HLR 307, CA.

  • [22]

    Yates v National Trust [2014] EWHC 222 (QB).

  • [23]

    Murphy v Brentwood DC (1990) 3 WLR 414, HL.

  • [24]

    Batty v Metropolitan Property Realisations Ltd. [1978] 2 All ER 445, CA.

  • [25]

    Murphy v Brentwood DC (1990) 22 HLR 502, HL.

  • [26]

    Rimmer v Liverpool CC (1984) 12 HLR 23.

  • [27]

    Smith v Eric S Bush (A Firm) [1990] UKHL 1.

  • [28]

    Scullion v Bank of Scotland Plc (t/a Colleys) [2011] EWCA Civ 693.