2020-02-17
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Occupiers' liability and defective premises

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Posted by Mary Rouse on 15 July 2013

Mary Rouse - Property Litigation Lawyer
Mary Rouse Partner

Two cases illustrate the difficulty of interpreting the law when it comes to landlords’ responsibility for injury incurred as a result of a perceived defect in their property. Defective premises are covered by two Acts: the Occupiers’ Liability Act 1957 and the Defective Premises Act 1972 but it is not always straightforward which one applies when.

Landlords not obliged to remedy defects

Drysdale v Hedges [2012] EWHC B20 (QB)

The landlord owned a house which was accessed by a path leading to three steps up to the front door. The path and steps were separated from an 8 foot drop to basement level by a low wall. Since buying the house, the landlord had not altered the wall but had painted the steps annually to improve their appearance. The paint was an outdoor paint, described as having a semi-gloss finish but not specifically as non-slip. The landlord let the house to a tenant under a tenancy agreement that included an obligation by the landlord to maintain the structure and exterior in good repair. The tenant slipped on the painted steps and was seriously injured falling over the wall to the basement level below. It was raining at the time of the accident and the steps were wet. The tenant claimed that the steps were unduly slippery as a result of being painted by the landlord and the wall was too low and not protected by a guard rail. The claim against the landlord was for breach of the Occupiers Liability Act and for a breach of the Defective Premises Act and for breach of the common duty of care. 

The High Court held that the landlord was not liable for any of the alleged breaches. Specifically, the Court held that Section 2 of the Occupiers Liability Act 1957 does not apply to landlords. Section 4 of the Occupiers Liability Act 1957 previously defined the landlord’s duty. This section was replaced by Section 4 of the Defective Premises Act 1972.  The Court decided that Parliament could not have intended for a landlord to be liable under both sections. There was no relevant defect under Section 4 of the Defective Premises Act in that neither the wall nor the painted steps were in disrepair. 

In Common Law, the lack of a guard rail was dangerous but a landlord who lets property in a dangerous condition is not obliged to remedy the defect. The landlord did owe the tenant a duty of care in respect of the painted steps but there was no breach. The landlord had used an external paint which any reasonable man on the street would have assumed was suitable for painting outside steps.  

Defective Premises Act holds landlords liable for repairs

Hannon v Hillingdon Homes Limited [2012] EWHC 1437

Mr Hannon was a heating engineer employed by a company with a long term maintenance contract with Hillingdon Homes Limited (“Hillingdon”), the company through which the London Borough of Hillingdon owned and managed its housing stock. At one of Hillingdon’s tenanted houses there had been a longstanding problem with the boiler which had resulted in 46 visits being made between 2000 and 2008 by various heating engineers, some employed by independent contractors and others by the Council, to resolve the problem.

Mr Hannon, while on one of these visits, was working upstairs when he heard a loud noise which he thought was the boiler. Running downstairs, he slipped and fell over the open side of the staircase (from which the bannister had been removed by the tenant some 20 years earlier) and seriously injured his ankle. Mr Hannon bought a claim against Hillingdon in negligence and under the Defective Premises Act.

The High Court held that Hillingdon was liable for Mr Hannon’s injury under the Defective Premises Act. Under the terms of the lease, Hillingdon was under an express obligation to keep the structure of the house in repair. The staircase was an essential feature of the layout of the house and was, therefore, part of the structure covered by Hillingdon’s repairing obligation. The Court decided that Hillingdon was responsible for replacing the banister even though it had been removed by the tenant. The Court also concluded that the independent contractors, who attended the property for the purpose of maintaining it, were acting as agents of Hillingdon which thus had sufficient notice of the state of disrepair and therefore should have remedied it. 

This case will concern landlords who have maintenance contracts with independent contractors for their housing stock. Leases should require that notices of any defects under the Defective Premises Act must be in writing; if this is not the case, visits to properties by employees of independent contractors could be deemed to be notice to the landlord of any defects. Where leases give landlords the right to enter to carry out works, it is vital that they inspect regularly for defects. Liability under the Defective Premises Act can arise even if the disrepair was caused by the tenant.

About the author

Mary Rouse

Partner

Mary is an experienced property litigation lawyer.

Mary Rouse

Mary is an experienced property litigation lawyer.

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