A landlord’s liability to its tenant for the condition of premises is generally governed by the provisions of the lease. The Defective Premises Act 1972 (DPA) can however, in certain circumstances, extend the contractual liability that the landlord owes to their tenant. The recent cases of Lafferty v Newark & Sherwood District Council, Sternbaum v Dhesi and Dodd v Raebarn Estates Ltd and others [1] consider the liability imposed by the DPA and provide some useful clarification on its interpretation.
Background
Under section 4(1) of the DPA a landlord owes, to all persons who might reasonably be expected to be affected by defects in the state of the premises, a duty to take such care as is reasonable in the circumstance to ensure that they are reasonably safe from personal injury or damage to property caused by a ‘relevant defect’. Section 4(2) of the DPA confirms that the duty is owed where the landlord knows or if they ought, in all the circumstances, to have known of the relevant defect.
A ‘relevant defect’ is defined in section 4(3) as being a defect in the state of the premises existing at or after the material time and having been caused by, or continuing because of, an act of omission of the landlord. That act or omission must constitute, or would have constituted if they had had notice of the defect, a failure by them to carry out their obligation to the tenant in respect of maintenance or repair of the premises.
The duty arises where the landlord is under an obligation to repair or maintain the premises. However section 4(4) of the DPA provides that the landlord is treated (for the purposes of sections 4(1) and 4(3)) as being under such an obligation where it has an express or implied right to enter the premises to carry out maintenance or repair.
As such by virtue of section 4(4), from the moment the landlord is, or has by notice, put itself in the position to enter a premises to undertake repairs or maintenance, the landlord will be treated has having an obligation to the tenant to carry out those works. The landlord will not however owe such a duty to the tenant in relation to a defect in the state of the property which has arisen, or is continuing, as a result of a tenant’s failure to comply with its obligations under the lease. As such the service by landlord of a notice pursuant to a ‘Jervis v Harris’ clause [2] would not lead the landlord to owe a duty to a tenant under the DPA however they could still owe such a duty to third parties.
It should noted that any duty owed by the landlord under the DPA does not extend beyond a duty to repair and maintain and does not therefore become a duty to make safe [3].
The cases
The first of the most recent cases to discuss liability under the DPA was Lafferty v Newark & Sherwood District Council. The facts of the case were somewhat unusual as they involved injury to a tenant who fell into a sinkhole caused by faulty drainage which opened suddenly whilst she was hanging out washing. The issues with the drainage would not have been apparent upon reasonable inspection of the garden.
It was held in this case that whilst the faulty drainage was a relevant defect for the purpose of section 4(3) of the DPA, as the drainage issue was not apparent on inspection it was a latent defect and section 4(2) was not engaged. As such, unless section 4(4) of the DPA could apply the landlord would not be held liable. The key point was therefore whether the wording of section 4(4) extended the landlord’s liability in the absence of fault, or merely served to confer the same obligation on the landlord as the duty under section 4(1) i.e. it would only be invoked if the landlord was culpable. The trial judge found that the duty under section 4(4) was equivalent to that under section 4(1) and, in dismissing a subsequent appeal, the High Court confirmed this decision.
The High Court confirmed that the duty arising under section 4(4) as a result of the landlord having a right to enter to repair is the same duty as applies under section 4(1) where it has an express or implied obligation to repair. Liability under section 4(4) is not strict [4], it is a deeming provision which extends the obligations in section 4(1) of the DPA to close a loophole in situations where it would not otherwise apply i.e. where there is no express of implied obligation to repair but a right to enter to repair exists.
It should be noted however that it appears that the claimant in this case has now applied for permission to appeal the decision of the High Court in the Court of Appeal.
The second case, Sternbaum v Dhesi involving the DPA concerned the definition of ‘relevant defect’. As stated above, a relevant defect is defined in section 4(3) of the DPA as a defect in the state of the premises existing at of after the material time and arising from or continuing as a result of an act or omission by the landlord which constitutes of would have constituted, if he had notice of the defect, a failure to carry out his obligations to the tenant in respect of repair and maintenance. The defect has to amount to disrepair in the strict sense and does not extend to putting the premises into a safe condition not remedying inherent defects that are not in the nature of repair.
In this case the Court of Appeal, in dismissing the claimant’s appeal, confirmed the first instance decision that whilst a staircase without a handrail was hazardous, it was not defective pursuant to the DPA. A lack of a handrail, although potentially dangerous, did not amount of disrepair and to oblige the landlord to fit a handrail would amount to requiring him to improve the premises and/or make them safe which is beyond the scope of the DPA.
The final case in this trio, Dodd v Raebarn Estates Ltd and others, also involved a staircase and arose as a result of the tragic death of Paul Dodd. Mr Dodd fell down a staircase, suffered a devastating brain injury and died two years later. Mr Dodd’s widow alleged that defects in the staircase, in particular the lack of a handrail, were responsible for her husband’s fall and that the landlord of the building was responsible for the defects.
The High Court reluctantly held that Mrs Dodd’s claim under the DPA failed. It was not in dispute that the landlord had a right to enter under the headlease to carry out maintenance and repair and therefore, in principle, owed a duty under the DPA. Furthermore Mr Dodd was clearly within the class of people to whom the duty under the DPA was owed. The failure to install a handrail however was not a ‘relevant defect’ under the DPA. A lack of a handrail is, as stated in the previous case, potentially dangerous and could amount to a defect in the state of the premises. However the landlord’s obligation extending only to repair and did not include an obligation to remedy inherent defects nor to putting the premises in a safe condition. Case law constrained the court to hold that the potential for a defect to be dangerous was not the correct test under the DPA. Despite the lack of a handrail it could not be said that the premises were not in good repair.
The court commented that they could not give a wide construction to the DPA as it would impose a substantial burden on the landlord over and above the statutory obligation imposed by the act.
WM Comment
It is clear from these cases that the courts are reluctant to give anything but the narrowest interpretation to the provisions of the DPA. The tenant cannot be put in a better position than they would have been if the landlord had complied with its obligations (whether expressed or implied) to repair the premises. The DPA cannot oblige the landlord to improve the premises nor render them safe and premises can be dangerous but still be in repair. If the landlord is not liable to repair, or does not have a right to enter the premises to remedy wants of repair, then no duty under the DPA arises.
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[1] Lafferty v Newark & Sherwood District Council [2016] EWHC 320 (QB), Sternbaum v Dhesi [2016] EWCA Civ 155 and Dodd v Raebarn Estates Limited and others [2016] EWHC 262 (QB).
[2] A ‘Jervis v Harris clause’ in a lease permits a landlord to enter the premises, on written notice, to inspect the state of repair. If a default in the tenant’s repairing obligation is discovered the landlord may then serve notice requiring remedial work to be undertaken and should the tenant fail to comply with that notice, the landlord may carry out the repairs and recover the cost of such repairs as a debt from the tenant.
[3] Alker v Collingwood Housing Association [2007] EWCA Civ 343.
[4] Strict liability makes a person legally responsible for damage/loss regardless of fault or culpability.
