Disrepair express terms in tenancy agreements

All tenancy agreements should be checked to see if they contain express obligations beyond the implied term that properties must be in good condition.

This content applies to England & Wales

Wording of the agreement

Certain repairing responsibilities are implied into every tenancy agreement. A landlord cannot avoid these repairing obligations through express contractual terms.  

The implied terms placing obligations upon landlords to ensure their properties are in good condition include fitness for human habitation of dwellings and repairing obligations in relation to the structure, exterior and installations of the dwelling.[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 they have 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.

Insurance and subrogated claims

Under the express terms of the tenancy agreement, the landlord might be required to take out insurance against damages to the property.

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 their only benefit.

If it is clear that there is a common intention that the insurance was taken out to protect both the landlord and the tenant against certain risks (for example fire, water damage), then the tenant is exonerated from liability even they were 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, they cannot bring a subrogated claim for damages against the tenant.[5]

Last updated: 22 March 2021

Footnotes

  • [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).