Common parts repairs implied terms in tenancy agreements

A duty of a landlord to repair the common parts of a property such as defective lifts or hallways is implied by legislation and common law.

This content applies to England & Wales

Part of buildings to which the repairing obligations apply

Under section 11 of the Landlord and Tenant Act 1985 a landlord is required to keep in repair the structure and exterior 'of any part of the building’ (including drains, gutters and external pipes) in which they have an estate or interest.[1]

As such, a landlord’s implied repairing obligations extend beyond the flat (or other dwelling) let to a tenant for their exclusive possession and includes obligations to repair common parts of the building (such as a communal front hall or a lift). This obligation only applies to tenancies that began on or after 15 January 1989.

The Supreme Court held that a common part that is not a part of the building (or attached to it) is not covered under section 11. As such an access path that led to the entrance door of a block of flats fell outside of section 11.[2]

Notice

The common parts are considered to remain in possession of the landlord (within the landlord's control), and a tenant is not required to give the landlord notice of the disrepair before the landlord's obligation to repair arises.[3] Typically, this applies when the landlord owns the entire building of which the individual flats let to tenants form part. This is common in council and housing association owned blocks.

A tenant would still be advised to report any problem they are aware of in the common parts to the landlord. Where a tenant knew of a defect but failed to report it to the landlord, damages under section 11 could be reduced because the tenant failed to act to mitigate their loss.[4]

In the case of a tenancy of an individual flat within a block where the landlord is not the owner of the block, the common parts cannot be said to be 'in possession' of either the tenant or the landlord. In this scenario (common when a landlord owns a single flat within a block and lets it out under an assured shorthold tenancy) the Supreme Court has strongly suggested that it is necessary for the tenant to give their landlord notice of the disrepair in the common part before the obligation to repair is triggered.[5]

Express terms in relation to repairing obligations 

Some tenancy agreements contain an express term placing an obligation on the landlord to repair and maintain the common parts, or specified areas of the common parts.

Depending on the wording this can place additional repairing obligations on the landlord to those implied under section 11.

Common law implied terms 

Where there are no express terms in the tenancy agreement or section 11 does not apply, the tenant may be able to rely upon certain common law implied terms.

These are:

  • where the landlord retains control of a part of a building and lets another part, they must maintain that part so as to prevent injury to the tenant or damage to the premises, for example preventing dampness getting into a flat[6]

  • where the tenant is given a contractual right to use another part of the building other than that let, for example a shared toilet, the landlord is under an obligation to maintain that part for use by the tenant[7]

  • the landlord must maintain facilities necessary for use by the tenant, for example lifts and rubbish chutes[8]

  • the tenant's right to quiet enjoyment may be breached where there is disrepair, for example where a landlord fails to keep a building watertight and this causes the tenant's flat to become damaged[9]

  • the landlord must not allow premises retained in their ownership to interfere with a tenant's premises[10]

Last updated: 22 March 2021

Footnotes

  • [1]

    s.11(1A) Landlord and Tenant Act 1985.

  • [2]

    Edwards v Kumarasamy [2016] UKSC 40.

  • [3]

    Passley v Wandsworth LBC (1998) 30 HLR 165, CA; British Telecommunications plc v Sun Life Assurance Society plc [1996] Ch 69.

  • [4]

    Minchburn v Peck (1998) 20 HLR 392, CA.

  • [5]

    Edwards v Kumarasamy [2016] UKSC 40.

  • [6]

    Cockburn v Smith [1924] 2 KB 119.

  • [7]

    Miller v Emcer Products [1956] Ch 304.

  • [8]

    Liverpool Corporation v Irwin [1977] AC 239.

  • [9]

    Booth v Thomas [1926] Ch 397.

  • [10]

    Chevron Petroleum [UK] Ltd v Post Office [1987] SLT 588.