A recent case has tested the Duty of Care imposed on landlords by existing UK law.
Are you a landlord with repairing obligations or rights to enter to maintain or repair properties? You may not have express duties to carry out inspections but you do have a duty of care in relation to the safety of tenants or anyone who might be affected by defects at your properties.
The recent case in the Court of Appeal of Ms Rogerson v Bolsover District Council has tested the duty of care imposed on landlords by section 4 of the Defective Premises Act 1972 (“the DPA”).
Reasonable care and relevant defects
Landlords are required to take “such care as is reasonable in all the circumstances” to ensure that their tenant, or anyone else, is reasonably safe from personal injury or damage to property caused by a “relevant defect”.
For a defect to be a “relevant defect”, and to therefore trigger a breach of the duty of care, it must exist at the time of any injury and it must arise from or continue from an act or omission by the landlord and that act or omission must amount to a breach of the landlord’s obligation (be that under a tenancy agreement or a lease) to maintain or repair the property. Therefore, if a defect arises from the tenant’s failure to perform their obligations under the tenancy agreement or lease then the landlord will owe no duty of care in relation to that defect.
The duty of care itself is triggered when or if the landlord knows, or ought to have known, about a defect. It is not required that the landlord has been put on actual notice of the defect for them to be considered to know, or ought to have known, about it. This difference in relation to notice is a key point where section 4 DPA 1972 differs from section 11 of the Landlord and Tenant Act 1985; pleading they have not been put on notice about a defect will not assist any landlord preparing a section 4 defence unless they ought not to have known about it otherwise.
Elizabeth Rogerson v Bolsover District Council (“the Council”) [2019] EWCA Civ 226
In this unfortunate case Ms Rogerson was injured whilst mowing her front lawn as she placed her left foot onto a defective sewer inspection cover. As it transpires, the cover and its supports were over 40 years old and were considerably corroded, causing it to give way as Ms Rogerson fell into the void beneath.
The Council were Ms Rogerson’s landlord at her property and had a specific responsibility under the tenancy agreement to maintain and repair the structure and exterior of the property and this triggered the duty of care as detailed above. Whilst the Council had carried out two inspections of the garden: one prior to the commencement of Ms Rogerson’s tenancy and one ten-yearly stock review, it was found at first instance that there was not enough evidence to show that those inspections satisfied the duty of care. Therefore the District Court awarded Ms Rogerson £15,000 compensation for personal injury, loss and damage.
Subsequent appeals
The County Court overturned the District Court’s decision which Ms Rogerson then appealed. On appeal it was considered whether the landlord’s actions, via the inspections carried out, were reasonable in all the circumstances. It was decided that a simple pressure test during a safety inspection could, at any time, have been applied to the inspection cover. The appeal court concluded that there was insufficient evidence to show that the Council had carried out any such test or inspection. As such Ms Rogerson’s appeal was upheld.
The key issue then for the Council was with their evidence. It may well have been the case that a safety test was carried out and the inspection cover was, all things reasonably considered, safe. However, the Council did not have appropriate records of the inspection to aid their defence and so the courts found there to be no clear demonstration that a reasonable inspection of the garden, or the cover, had been executed.
Points to consider in all the circumstances
It is important to note that there is no duty from the DPA to inspect but doing so can mean that the landlord actually knows, rather than ought to know, about any potential defects at a property. Sometimes a mere visual inspection may be all that is required but in some cases physical tests as to the safety of features of a property may be necessary; it all depends on the nature and circumstances of that property and that particular potential defect.
In summary, this case highlights the following key points:
- Landlords must know their properties – the Council would have been well-placed to be aware of the inspection cover, its age, condition and risk;
- Inspections should be carried out as appropriate for the property in all the circumstances, particularly taking into account any features which could become relevant defects; and
- Clear and detailed records of inspections must be produced and kept so that they can be used in evidence should any section 4 claim arise in the future.
For more information on the topic, please contact a member of our Housing team.
