The Defective Premises Act 1972: bringing order to the chaos

January 17, 2023

by Chris Richards

Introduction

This article focuses on the Defective Premises Act 1972.

If you have a claim involving defective premises, the Defective Premises Act 1972 should be the first port of call. The Defective Premises Act 1972 sets out the duties owed by those constructing dwellings, working on dwellings, and renting properties out. However, the statute is complex and quite poorly drafted. It can be difficult to know whether you have a claim (or a defence) and if so what part of the Act is relevant.

The purpose of this article is to provide a helpful gloss on each of the sections of the Act and see how the Act can be applied in practice.

Disclaimer

This article is intended as a general introduction to the topic. The article does not constitute legal advice to be relied upon. Every case turns on its own facts. The author would always be happy to field queries from solicitors over email (richards@exchangechambers.co.uk).

Section 1(1): the duty to build dwellings properly

Section 1(1) of the Act sets out the duty owed by those who are taking on work in connection with the provision of a dwelling.

Section 1(1) states as follows:

(1)  A person taking on work for or in connection with the provision of a dwelling (whether the dwelling is provided by the erection or by the conversion or enlargement of a building) owes a duty—

(a)  if the dwelling is provided to the order of any person, to that person; and

(b)  without prejudice to paragraph (a) above, to every person who acquires an interest (whether legal or equitable) in the dwelling;

 to see that the work which he takes on is done in a workmanlike or, as the case may be, professional manner, with proper materials and so that as regards that work the dwelling will be fit for habitation when completed.

Section 1(1) – What is a dwelling?

The duty is owed in respect of ‘dwellings’. The Defective Premises Act 1972 does not attempt to define what a ‘dwelling’ is. However, there has been some commentary in the case law:

• Catlin Estates Ltd and another v Carter Jonas (a firm) [2005] EWHC 2315 (TCC): a dwelling is “a building used or capable of being used as a dwelling house, not being a building which is used predominantly for commercial and industrial purposes” (paragraph 296). The reference to the building being “capable of being used as a dwelling house” probably means that the building does not need to be in active occupation for the building to be deemed to be a dwelling for the purposes of the Act.
• Rendlesham Estates plc and others v Barr Ltd [2014] EWHC 3968 (TCC): it would be wrong to describe a whole apartment block, made up of different apartments, as a single ‘dwelling’ (paragraphs 33 to 46).

Section 1(1) – What is the ‘provision’ of a dwelling?

The duty is owed where work is being done with regard to the ‘provision’ of a dwelling. Section 1(1) does not define the ‘provision’ of a dwelling but indicates that the provision of a dwelling is achieved through the “erection[…,] conversion or enlargement of a building”. The case law makes clear that the ‘provision’ of the dwelling means the creation of a new dwelling:

• Saigol v Cranley Mansions (unreported, 6^th July 1995): the Court of Appeal held that “as a matter of construction, the section is directed to the provision of a new building”. The Court of Appeal further held that “[t]he Act applies to [the] provision of a dwelling whether by erection or the conversion or enlargement of a building” (pages 32 and 33). However, the Court of Appeal noted that “[t]he provision of which the Act speaks is the provision of something – a dwelling – which has not existed before”.
• Jenson & Anor v Faux (Rev 1) [2011] EWCA Civ 423: the Court of Appeal approve the above case of Saigol (paragraphs 10 and 11). The Court of Appeal held that even substantial works which reworked large parts of a property did not create a new dwelling and hence did not bring the claimant within the scope of the Act.

However – we will examine section 2A of the Act shortly, which has recently been added to bring within the scope of the Act works on existing dwellings.

Section 1(1) – What does it mean to be ‘taking on’ the work?

The duty is owed by those who are ‘taking on’ this work. It seems clear that those ‘taking on’ the work for the purposes of the Act must be involved with physically executing the work. This can involve designing the building, physically working on it, but does not extend to the mere arranging of the work:

• Mirza v Bhandal [1999] 4 WLUK 259: an owner of a property who gives instructions for work to be done is not ‘taking on’ the work for the purposes of the Act. The High Court held that “[a] distinction is to be made between those who “order” the provision of a dwelling, and those who take on work in connection with the provision of that dwelling. The High Court further held that “the owner of a dwelling does not ‘take on work’ for the purposes of sub-section (1) merely by virtue of the fact that he has given instructions for work to be done, or has employed someone to do work. That is more naturally described as ‘arranging’ for work to be done than ‘taking on’ work”.
• Lessees and Management Company of Herons Court v Heronslea Ltd and others [2018] EWHC 3309 (TCC): the High Court held that a local authority exercising its building control function, or an approved inspector appointed in accordance with the Building Regulations, is not ‘taking on’ the work for the purposes of the Act either.

Section 1(1) – Who benefits from the duty?

The duty under Section 1(1) is owed to two main groups:

• The person who originally commissioned the dwelling;
• Any person who subsequently obtains a legal or equitable interest in the dwelling.

Section 1(1) – What is the duty?

The duty under Section 1(1) can be broken down into three separate elements:

• The works must be carried out in a workmanlike manner (where physically being carried out) or a professional manner (where the work is more to do with design);
• The works must be carried out with proper materials;
• The works must leave the dwelling fit for human occupation when completed.

However – the duty is ultimately to leave the dwelling fit for human occupation when completed. The manner in which the work is done, and the materials used, are effectively a means to an end. The Claimant must be in a position to show that the slapdash manner in which the work was completed, and/or the inadequate materials used, have ultimately left the dwelling in a state in which it is not fit for human habitation (see Harrison & Ors v Shepherd Homes Ltd & Ors [2011] EWHC 1811 (TCC), paragraph 153). Conversely, it is not enough to say that the harm was caused by the slapdash manner in which the work was completed, and/or the inadequate materials used. The Claimant must go beyond this and show that the effect was to render the dwelling unfit for human occupation.

There are a number of cases where specific defects have been found to render a dwelling unfit for human habitation (e.g. a lack of a damp-proof course – Andrews v Schooling [1991] 1 WLR 783). When considering whether the property has been left unfit for human habitation, a good starting point will be the list of criteria in section 10 of the Landlord and Tenant Act 1985.

One other thing to note is that the defect does not have to be in the dwelling itself to render the dwelling unfit for human habitation. If the defect forms part of the access to the dwelling, or affects sewerage and drainage, it may still render the dwelling unfit for habitation (Rendlesham Estates plc and others v Barr Ltd [2014] EWHC 3968 (TCC)).

Section 1(2) and (3): the defence of following instructions

It might not have worked at Nuremberg – but here, following orders may be a defence.

Section 1(2) states as follows:

(2)  A person who takes on any such work for another on terms that he is to do it in accordance with instructions given by or on behalf of that other shall, to the extent to which he does it properly in accordance with those instructions, be treated for the purposes of this section as discharging the duty imposed on him by subsection (1) above except where he owes a duty to that other to warn him of any defects in the instructions and fails to discharge that duty.

If a person is following instructions given by another, and he is following the instructions ‘properly’, he will be treated as discharging the duty in section 1(1). The claim would probably need to be brought against the person who gave them the instructions in the first place. This would mean that a bricklayer who carefully followed the instructions from a supervisor would probably be protected from a claim.

The above section makes clear that the person following the instructions will not be protected where they have a duty to warn the person giving the instructions that their instructions are incorrect. This duty does not arise from the Defective Premises Act 1972 itself and probably is going to be found in the contractual relationship between the two people.

Section 1(3) also gives some useful detail about what instructions are specific enough to be counted as instructions for the purposes of the Act:

(3)  A person shall not be treated for the purposes of subsection (2) above as having given instructions for the doing of work merely because he has agreed to the work being done in a specified manner, with specified materials or to a specified design.

Section 1(5): the limitation position

Section 1(5) states as follows:

(5) Any cause of action in respect of a breach of the duty imposed by this section shall be deemed, for the purposes of the Limitation Act 1980, to have accrued at the time when the dwelling was completed, but if after that time a person who has done work for or in connection with the provision of the dwelling does further work to rectify the work he has already done, any such cause of action in respect of that further work shall be deemed for those purposes to have accrued at the time when the further work was finished.

This is the big problem for Claimants. The limitation period is deemed to start running when the dwelling is completed. The time limit for bringing a claim is therefore very limited. The Claimant may only have a few years after the building is completed to bring a claim. This stopped the Claimant relying on the section 1(1) duty in the noted case of Rimmer v Liverpool City Council [1984] 2 W.L.R. 426.

The limitation period for claims under the Defective Premises Act 1972 has recently been extended. Section 135 of the Building Safety Act 2022 added a new section 4B to the Limitation Act 1980. This extended the limitation period to:

• 15 years for claims under section 1 and 2A of the Defective Premises Act 1972 (where accruing after the Building Safety Act 2022 comes into effect);
• 30 years for claims under section 1 of the Defective Premises Act 1972 (where accruing before the Building Safety Act 2022 comes into effect);

However, I suspect that the Claimant in a personal injury claim will still only have three years from the completion of the dwelling in order to bring a claim. Section 11(1) makes clear that the three-year time limit is quite sweeping in application:

(1) This section applies to any action for damages for negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of provision made by or under a statute or independently of any contract or any such provision) where the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries to the plaintiff or any other person.

Section 2: the (now defunct) statutory exclusion of the right to make a claim

Section 2(1) states as follows:

(1)  Where—

(a) in connection with the provision of a dwelling or its first sale or letting for habitation any rights in respect of defects in the state of the dwelling are conferred by an approved scheme to which this section applies on a person having or acquiring an interest in the dwelling; and

(b) it is stated in a document of a type approved for the purposes of this section that the requirements as to design or construction imposed by or under the scheme have, or appear to have, been substantially complied with in relation to the dwelling;

 no action shall be brought by any person having or acquiring an interest in the dwelling for breach of the duty imposed by section 1 above in relation to the dwelling.

The effect of this section in broad terms is where a dwelling is covered by a scheme approved by the Secretary of State, no claim can be brought under section 1 of the Defective Premises Act.

This section used to be important given the effect of the National House Building Council warranty. When the Defective Premises Act 1972 originally came into force, the NHBC scheme was approved by the Secretary of State and no claim could be made. However, the approval lapsed on 31 March 1979 and the existence of a NHBC warranty since then has not been any obstacle in terms of making a claim.

Section 2A: the duties relating to work on dwellings

Section 2A of the Defective Premises Act 1972 is a recent addition and is really important.

Readers will remember that the duty arising under Section 1(1) of the Defective Premises Act 1972 is only owed where work is being done with regard to the ‘provision’ of a dwelling (i.e. the creation of a new dwelling). It might seem strange that a company responsible for substantial works which rework large parts of a property would not owe any duty under the Act (as in the case of Jenson).

Happily, Parliament decided to broaden the scope of the Defective Premises Act 1972. On 28 April 2022, the Building Safety Bill 2021-22 received Royal Assent and became known as the Building Safety Act 2022. The Building Safety Act 2022 inserts a new Section 2A into the Defective Premises Act 1972.

The first three subsections of Section 2A read as follows:

(1)  This section applies where a person, in the course of a business, takes on work in relation to any part of a relevant building.

(2)  In this section “relevant building”  means a building consisting of or containing one or more dwellings.

(3)  The person owes a duty to—

(a)  the person for whom the work is done, and

(b)  each person who holds or acquires an interest (whether legal or equitable) in a dwelling in the building,

 to see that the work is done in a workmanlike or (as the case may be) professional manner, with proper materials and so that as regards the work the dwelling is fit for habitation when the work is completed.

Section 2A widens the scope of the duty in Section 1 of the Act to include those doing work on a dwelling (as opposed to those who are essentially creating a new dwelling). Those doing the work must be doing so in the course of a business to fall within this section. Interestingly, Section 2A deals with the issue of whether a building containing several dwellings is itself a ‘dwelling’ and instead talks about a ‘relevant building’.

Section 2A(4)(a) makes clear that Section 1 will apply instead where the work concerns the provision of a dwelling.

Sections 2A(5) and (6) includes a section dealing with the defence of following instructions.

Section 2A(7) makes clear that delegation of the work to another does not affect the duty owed.

Section 2A(8) includes a provision about the limitation period also starting to run when the work is done.

Section 3: the effect of the disposal of premises

Section 3(1) states as follows:

(1)  Where work of construction, repair, maintenance or demolition or any other work is done on or in relation to premises, any duty of care owed, because of the doing of the work, to persons who might reasonably be expected to be affected by defects in the state of the premises created by the doing of the work shall not be abated by the subsequent disposal of the premises by the person who owed the duty.

It is worth noting that this section does not create any standalone duty of care. This duty simply says that if there is a duty of care (whether from the Act or otherwise), and the person who owns the premises is the one who owes the duty, they cannot simply escape liability by disposing of the premises (e.g. by selling the premises to a third party). The liability stays with them.

Section 4: the duty of care owed by landlords

Section 4 is the crucial part of the Act for personal injury practitioners. The majority of claims for personal injury compensation are brought against landlords. This is the part of the Act which sets out whether you can bring a claim against the landlord or not. I will deal with each of the subsections one by one.

Section 4(1): the main duty of care

Section 4(1) states as follows:

(1)  Where premises are let under a tenancy which puts on the landlord an obligation to the tenant for the maintenance or repair of the premises, the 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 all the circumstances to see that they are reasonably safe from personal injury or from damage to their property caused by a relevant defect.

Section 4(1) – When is the duty owed?

The duty is owed where the tenancy agreement includes an obligation to the tenant for the maintenance or repair of the premises.

The obligation to the tenant for the maintenance or repair of the premises may arise through:

• Express terms in the tenancy agreement;
• Terms implied by statute (e.g. the implied terms in section 11 of the Landlord and Tenant Act 1985, which will be discussed below).

It is worth remembering that not all tenancy agreements will include an obligation to the tenant for maintenance or repair. There are some commercial tenancy agreements where the responsibility for the maintenance or repair of the premises falls upon the tenant and potentially no duty will arise under section 4(1).

Most claims under the Defective Premises Act 1972 concern residential property. Where the lease concerns a dwelling, and is for a term of less than seven years, Section 11 of the Landlord and Tenant Act 1985 will generally imply certain repairing obligations into the tenancy agreement. However, these are very basic:

11. Repairing obligations in short leases.

(1) In a lease to which this section applies (as to which, see sections 13 and 14) there is implied a covenant by the lessor—

(a) to keep in repair the structure and exterior of the dwelling-house (including drains, gutters and external pipes),

(b) to keep in repair and proper working order the installations in the dwelling-house for the supply of water, gas and electricity and for sanitation (including basins, sinks, baths and sanitary conveniences, but not other fixtures, fittings and appliances for making use of the supply of water, gas or electricity), and

(c) to keep in repair and proper working order the installations in the dwelling-house for space heating and heating water.

It is worth remembering that the terms implied by Section 11 of the Landlord and Tenant Act 1985 are the minimum. If the tenancy agreement requires the landlord to do more, this will need to be taken into account.

The ‘premises’ will generally include the whole area demised to the tenant under the tenancy agreement (including built structures as well as any external grounds). The Court of Appeal held as follows in the authority of Smith v Bradford Metropolitan Council (1981-82) 4 H.L.R. 86:

“‘Premises’ seem to me to be a wide word. In this Act I would regard it as meaning the premises let — the letting — the subject of the tenancy — all of it; the whole letting, land and buildings; and it would need clear language to restrict the premises let to the plaintiff so as to exclude what was obviously part of them, namely, the patio…” [page 93, per Stephenson LJ]

Section 4(1) – To whom is the duty owed?

The duty under Section 4(1) of the Defective Premises Act 1972 is owed to those who might reasonably be affected by defects in the state of the premises. This includes the tenant, those living at the property, and their visitors. This may even include trespassers and those using a public highway. The landlord owes a duty in respect of a far broader range of people than they would if they were simply the occupier.

Section 4(1) – What is the scope of the duty?

The duty under Section 4(1) of the Defective Premises Act 1972 is similar to the duty which arises under Section 2 of the Occupiers’ Liability Act 1957. The landlord must take reasonable steps to make sure that those who might reasonably be affected by defects in the state of the premises are kept reasonably safe.

There are no hard and fast rules about what level of care is required. There are equally no hard and fast rules about what specific things the landlord must do to escape liability. The court in each case will decide whether in the facts of the case the landlord has done enough to discharge their duty.

The Court of Appeal discussed in the recent authority of Elizabeth Rogerson v Bolsover District Council [2019] EWCA Civ 226 the question of whether the duty under Section 4(1) requires the landlord to carry out regular inspections. It was held that the duty under Section 4(1) did not automatically require landlords to carry out a system of regular inspection. However, landlords may need (depending on the facts of the case) to carry out regular inspections to discharge the duty under Section 4(1):

“Does section 4 of the DPA 1972 require a landlord to implement a system of inspection? I do not read any of the authorities cited by the parties as requiring a landlord, without more, as being under a duty to implement a system of regular inspection in order to satisfy the provisions of section 4. In each case it is a question of fact, one aspect of that being the knowledge of the landlord as to any likely or known risks or problems in the property. In this case there had been inspections: one triggered by the commencement of a new tenancy; another by a ten-year stock review. These were occasions when it was reasonable to implement inspections. However, given the facts as they are known to the court, in my view, there is insufficient evidence to provide a sound basis for stating that section 4 required this landlord, without more, to institute a system of regular inspection of the property.” [paragraph 25, per Davies LJ]

Landlords also need to be careful to ensure that the inspections are sufficiently thorough. The landlord in the authority was heavily criticised (and eventually lost the case) because their inspections were insufficiently thorough (see paragraph 31 of the judgment and the discussion about how thoroughly the landlord should have been inspecting a manhole cover in a garden).

Section 4(2): the requirement for knowledge

Section 4(2) states as follows:

(2) The said duty is owed if the landlord knows (whether as the result of being notified by the tenant or otherwise) or if he ought in all the circumstances to have known of the relevant defect.

The landlord does not need to have actual knowledge of the defect in order for the duty under section 4(1) to arise. In other words, the landlord does not need to be told about the existence of the defect in order to then take reasonable care to prevent people from being harmed by it. The duty arises if the landlord in all the circumstances of the case ought to have known about the defect.

There is again some helpful commentary in the case of Elizabeth Rogerson v Bolsover District Council [2019] EWCA Civ 226. The Court of Appeal explain that the words ‘ought in all the circumstances to have known of the relevant defect’ does not have any special meaning. There does not need to be any reference to what may be said in the tenancy agreement about how a tenant may report defects to the landlord. The question of whether the landlord should have known about the defect will usually turn on whether the landlord should have inspected the property, and how thoroughly:

“The duty to take such reasonable care only arises if the landlord knows of the defect or if he ought in all the circumstances to have known of it: see subsection (2). The words “ought in all the circumstances to have known of the relevant defect” are general words and mean what they say. They are not dependent on any concept of contractual notice: Sykes v Harry at [19] to [21]. The statute does not refer to any duty on the landlord to inspect the premises, but in a case where the landlord does not have actual knowledge, the question whether he ought to have known of the defect will usually depend upon what steps he ought reasonably to have taken to inspect the premises and whether an inspection which he ought reasonably to have carried out would have revealed the defect in question.” [paragraph 37, per Males LJ]

The requirement for knowledge in section 4(2) is sometimes equated with the requirement for fault on the part of the landlord. The landlord has to either have known about the defect, and not remedied it, or effectively not done enough to find out about potential defects. The landlord has to have done something wrong. This section protects the landlord from owing the tenant a duty in respect of defects that they did not know about and could not reasonably have found out about.

Section 4(3): the definition of a relevant defect

Section 4(3) states as follows:

(3)  In this section “relevant defect”  means a defect in the state of the premises existing at or after the material time and arising from, or continuing because of, an act or omission by the landlord which constitutes or would if he had had notice of the defect, have constituted a failure by him to carry out his obligation to the tenant for the maintenance or repair of the premises; and for the purposes of the foregoing provision “the material time”  means—

(a)  where the tenancy commenced before this Act, the commencement of this Act; and

(b)  in all other cases, the earliest of the following times, that is to say—

(i)  the time when the tenancy commences;

(ii)  the time when the tenancy agreement is entered into;

(iii)  the time when possession is taken of the premises in contemplation of the letting.

The first thing to note is that the defect (for now) will only be relevant for the purposes of the Act if it falls within the obligations for maintenance or repair which are placed upon the landlord in the tenancy agreement. The question is whether the landlord, assuming they knew about the existence of the defect, would have been required under the tenancy agreement to do anything about it. If the answer is in the negative, the defect will not be relevant for the purposes of the Act.

The defect will only be relevant for the purposes of the Act if it represents a failure to repair. Something must be broken. It is true that Section 4(3) refers to an obligation for the “maintenance or repair” of the premises. It could be argued that the ‘maintenance’ of the property goes beyond mere ‘repair’. The maintenance of the property could mean keeping the property in a safe condition. Unfortunately, this interpretation has been comprehensively rejected by the courts. The Court of Appeal held in the authority of Alker v Collingwood Housing Association [2007] EWCA Civ 343 that the obligation for the “maintenance or repair” of the premises involves correcting things which were in disrepair. Making something safe (e.g. replacing an thin glass panel with safety glass) was not the same as correcting something which was in disrepair (e.g. replacing a broken window):

“There is, as my Lord, Lord Justice Carnwath pointed out in the course of argument, much learning on this dichotomy between maintain and repair. It is not necessary to go into it in this case. No doubt the two concepts overlap. Neither of them, however, can in my judgment possibly be said to encompass or to include a duty or obligation to make safe. […] I do not think it can be said that the Act requires a landlord on proof only of the conditions I have described for the application of section 4 to make safe any such dangerous feature…” [paragraph 14, per Laws LJ]

There are some examples of defects which were found not to involve any disrepair, and which hence did not give rise to liability under the Act:

• Dodd v Raebarn Estates Ltd [2016] EWHC 262 (QB) – a steep staircase without a handrail
• Sternbaum v Dhesi [2016] EWCA Civ 155 – again, a steep staircase without railings

The authority of Boldack v East Lindsey DC (1998) 30 H.L.R. 41 involved a person being injured by a paving stone which had been propped up against the side of a house and which had fallen on him. The Court of Appeal held that the removal of the paving slab did not constitute repair or maintenance and hence did not come within the obligation to the tenant for the maintenance or repair of the premises.

It is also clear that where a defect is built into the property, and amounts to poor design, the defect will not be relevant for the purposes of the Act (Quick v Taff Ely BC [1986] 1 QB 809). However, there may well be a duty arising under Section 1(1) of the Defective Premises Act 1972.

Section 4(4): the extension of the duty of care

Section 4(4) is where things get really complicated. Section 4(4) is horribly drafted and has resulted in lawyers creating all sorts of tortured interpretations to aid their cause. The courts have then adopted equally tortured reasoning to explain why they are incorrect. There are judgments piled on top of other judgments which simply muddy the waters further. What Section 4(4) really needs is a single judgment which would review the earlier authorities and set out, in three or four bullet points, what this section really means. We can live in hope.

Section 4(4) states as follows:

(4)  Where premises are let under a tenancy which expressly or impliedly gives the landlord the right to enter the premises to carry out any description of maintenance or repair of the premises, then, as from the time when he first is, or by notice or otherwise can put himself, in a position to exercise the right and so long as he is or can put himself in that position, he shall be treated for the purposes of subsection (1) to (3) above (but for no other purpose) as if he were under an obligation to the tenant for that description of maintenance or repair of the premises; but the landlord shall not owe the tenant any duty by virtue of this subsection in respect of any defect in the state of the premises arising from, or continuing because of, a failure to carry out an obligation expressly imposed on the tenant by the tenancy.

This section, in my reading, has two key effects:

(1) If the tenancy agreement does not include a maintenance or repairing obligation, but the landlord has the right to enter the premises to carry out any description of maintenance or repair, the landlord is treated as if the tenancy agreement included a maintenance or repairing obligation, with the maintenance or repairing obligation effectively copied across from the description of maintenance or repair for which the landlord has the right to enter the premises.

Translating this into plain English, let’s say we have a tenancy agreement which does not require the landlord to do any maintenance or repair. Assuming that there is no obligation implied into the contract (e.g. by section 11 of the Landlord and Tenant Act 1985), this would normally mean that there would be no duty arising under section 4(1). However, let’s say that the landlord has a right under the tenancy agreement to enter the property to fix any broken windows. The effect of Section 4(4) is to treat the landlord as if the tenancy agreement required him to fix broken windows. If there is a broken window, this will potentially become a relevant defect.

In the authority of Smith v Bradford Metropolitan Council (1981-82) 4 H.L.R. 86, a Claimant was injured by a faulty patio. The tenancy agreement (having been entered into before the commencement of the Landlord and Tenant Act 1985) did not require the landlord to carry out any repairs. There was no obligation for maintenance or repair on the face of the tenancy agreement. However, the tenancy agreement conferred upon the landlord a right to enter and carry out ‘repairs’. The Court of Appeal appears to have taken it as read that a right to carry out ‘repairs’ meant that the landlord was treated, for the purposes of the Act, as if they were required to repair anything within the property which was out of repair. The Court of Appeal reversed the initial decision to dismiss the claim and found that the landlord was liable under the Act.

In the authority of Paula Pritchard v Caerphilly CBC [2013] WL 6980728, a Circuit Judge held that where a landlord has the right under the tenancy agreement to enter the premises to carry out a certain type of repair, they will be treated as if their duty extended to that type of repair. The right to enter the premises and carry out the repair becomes a duty:

“When the legislation under sub-section (4) states that the landlord should be treated for the purposes of sub-section (1) to (3) above as if he were under an obligation to the tenant for that description of maintenance or repair of the premises, it seems to me that this is in part the product of the purpose of the Act to render a landlord liable where he has a right to repair and does not exercise it, thus transforming the terms of the agreement into an obligation upon him to repair and from that a duty to take such care as is reasonable in all the circumstances to see that they are reasonably safe and that sub-sections (1) to (3) interrelate and are to be read together just as they are together with sub-section (4).” [paragraph 23, per HHJ Llewellyn]

This authority was cited with approval by the Court of Appeal (Northern Ireland) in Argue v Northern Ireland Housing Executive [2016] NICA 18 (see paragraph 32).

(2) If the description of maintenance or repair for which the landlord has the right to enter the property is wider in scope than the maintenance or repairing obligation which is already in the tenancy agreement, the scope of the maintenance or repairing obligation is effectively expanded to include the description of maintenance or repair for which the landlord has the right to enter the property.

Translating this into plain English, let’s say we have a tenancy agreement which only includes the basic obligations implied by Section 11 of the Landlord and Tenant Act 1985. You have an accident involving a broken window. The repair of broken windows does not fall within the maintenance or repairing obligations implied by Section 11. However, let’s say that the landlord has a right under the tenancy agreement to enter the property to fix any broken windows. The effect of Section 4(4) is to treat the landlord as if the tenancy agreement required him to fix broken windows. If there is a broken window, this will potentially become a relevant defect.

Section 4(4): the effect of implying a right to enter

One interesting point is that even if the tenancy agreement does not confer upon the landlord the right to enter the property for the purposes of maintenance or repair, the court may be willing to imply this right into the tenancy agreement. This is what happened in the authority of McAuley v Bristol City Council [1992] Q.B. 134. The Court of Appeal in this case found that the landlord had an implied right to enter the property to remedy defects which exposed tenants or visitors to a serious risk of injury. This being so, the landlord was treated as being under an obligation to remedy defects which exposed tenants or visitors to a serious risk of injury. The defect in question (a flight of unstable steps) exposed tenants or visitors to a serious risk of injury and was therefore treated as a relevant defect. This logic was cited with approval in the recent case of Elizabeth Rogerson v Bolsover District Council [2019] EWCA Civ 226 (see paragraph 53).

I find this logic very unsatisfactory. It seems that in any tenancy agreement, the court will likely be willing to imply into the tenancy agreement a right to enter the property to remedy defects (regardless of whether the defects are ‘serious’, in the case of McAuley, or whether the repairs are ‘necessary’ as in the case of Rogerson). The court then treats those defects, for which the landlord has the right to enter the property to repair, as being defects which the landlord is obliged to repair for the purposes of section 4(1). The landlord is magically treated as if they are obliged under the tenancy agreement to repair any defects for which they have the right to enter the property. The approach in McAuley seems to remove the protection provided to landlords by section 4(3) of the Act. Section 4(3), as readers will remember, states that the landlord should have a duty in respect of those defects which they are obliged to repair under the tenancy agreement. The landlord can decide at the time of entering into the agreement which defects they should be obliged to repair. If the landlord is treated as if they are required to repair any defects for which they could conceivably enter the property to remedy, section 4(3) becomes irrelevant. The approach in McAuley also seems to conflict with the statement in Lafferty v Newark and Sherwood DC [2016] EWHC 320 (QB) that sections 4(1), (2), (3) and (4) form part of a “harmonious code” and do not conflict with each other (paragraph 37). I suspect that the true interpretation of section 4(4) is that the right to enter the property is that which is included on the face of the tenancy agreement. Perhaps we are due another trip to the Court of Appeal.

It may be best for landlords to assume that whatever is said in the tenancy agreement, if the defect is the sort of thing that the landlord would have been able to enter the property to remedy, they will owe the tenant a duty to make sure that they are reasonable safe from harm caused by the defect.

Section 4(4): the challenge in Lafferty

There is a recent authority named Lafferty v Newark and Sherwood DC [2016] EWHC 320 (QB) which shows how distorted the interpretation of section 4(4) has become. The case involved a lady who was injured when a hole opened up in her garden. The lady fell into it and was injured. There had been a leaking pipe under the garden which had caused the ground to erode away. The landlord was never going to discover this issue when inspecting the property. This was not a defect which the landlord knew about or should have known about (remembering, of course, the wording of section 4(2)). The Claimant in the case of Lafferty suggested that the effect of section 4(4) was not to extend the duty in section 4(1), maintaining the requirement for fault in section 4(2), but instead to do something much more radical (see paragraph 25). The Claimant suggested that the effect of section 4(4) was to fix landlords with liability regardless of their knowledge of the defect. Even if the landlord had no idea about the defect, and could never have known about it, the landlord would still be to blame. The Claimant suggested that the effect of section 4(4) was somehow to impute knowledge of the defect to the landlord regardless of the wider circumstances. The Claimant alternatively suggested that section 4(4) resulted in the landlord having an “an obligation to inspect, maintain and repair which was unavoidable”. The Claimant suggested that section 4(2) of the Act effectively falls away wherever section 4(4) is relevant. Somewhat unsurprisingly, the High Court found that this argument was wrong. Even if the scope of the duty was extended under section 4(4), the Claimant still had to prove that the defect was one which the landlord knew about or should have known about:

“I agree with Mr Godfrey that the purpose of section 4(4) is not to create a strict liability but to extend the application of section 4(1) to relevant defects which are outwith its scope (the first of my foregoing situations), and therefore to bring them within the scope of the section as a whole. The purpose of section 4(4) is not to confer an additional or alternative route to recovery where the claim under section 4(1) fails on its facts because section 4(2) is unsatisfied.” [paragraph 33, per Jay J]

A similar argument had been advanced by the Claimant in the case of Paula Pritchard v Caerphilly CBC [2013] WL 6980728 and was also rejected.

Sections 5 / 6 / 7: the final three sections

Section 5 confirms that the Defective Premises Act 1972 can be used against the Crown. However, Section 5 states that “as regards the Crown’s liability in tort [the Act] shall not bind the Crown further than the Crown is made liable in tort by the Crown Proceedings Act 1947”. The Crown Proceedings Act 1947 includes a number of limitations when bringing claims against the Crown.

Section 6(2) makes clear that the statutory duties under the Defective Premises Act 1972 are in addition to any contractual or tortious duties which might be owed. This is why you will frequently see in a claim brought by a tenant not only an allegation that the duties under the Defective Premises Act 1972 have been breached, but also the requirements of the tenancy agreement.

Section 6(3) makes clear that the parties entering into a contract (for the sale of the property, or the leasing of the property) cannot exclude the effect of the Defective Premises Act 1972. If you see something in the tenancy agreement which says that the duties in the Defective Premises Act 1972 do not apply, this will be meaningless.

Final words

I hope that this article has been helpful.