As it seems to me, on the thread there are four suggestions as to the law:

• It is illegal for a landlord to hold a set of keys – This has been resolved as human error and our article here.

Then, three new suggestions namely:-

1. There is no automatic right for a landlord to hold keys,
2. To be safe he should obtain the permission of the tenant but the tenant could rescind this permission anytime, and
3. A tenant has a TOTAL RIGHT to change a lock

Let’s start at the beginning. Nobody is disputing anytime throughout the thread that the tenant’s right to quiet enjoyment overrules the landlord’s right of entry. This, I entirely accept and will go a step further and actually provide the case law where this comes from.

Exclusive possession is the ability on the part of a tenant to exclude all persons, including the landlord, from possession. [Street v. Mountford [1985] 2 W.L.R. 877]

However, the holding of keys by a landlord is not a breach of the tenant’s right to quiet enjoyment. The question to ask is why those keys are being held. Assuming those keys are being held solely for the purpose of carrying out landlord’s responsibilities such as repairs, gas safety record etc. then the landlord may hold those keys [Aslan v Murphy (No 1 and 2) [1989] EWCA Civ 2]. However, if the keys are being held for the purpose of entering twice a day just to annoy the tenant, then still the holding of keys are not the breach of quiet enjoyment, it is the entering twice a day that is (I assume case law is not needed for that assertion!)

There is no automatic right for a landlord to hold keys

It is respectfully submitted this is incorrect. We live in a free country meaning an individual may do anything they like unless there is some Act of Parliament, Regulations, orders, case law (common-law) or finally contractual term prohibiting or requiring an individual to do or not to do something.

It is an implied covenant of every tenancy granted for a term of less than seven years that “…the lessor, or any person authorised by him in writing, may at reasonable times of the day and on giving 24 hours’ notice in writing to the occupier, enter the premises comprised in the lease for the purpose of viewing their condition and state of repair.” [s.11(6) Landlord and Tenant Act 1985].

You will note however, that s.11(6) is only allowing a landlord to enter “for the purpose of viewing their condition and state of repair“. It is not a covenant allowing the landlord to actually carry out repairs. This is where assured shorthold tenancies have an advantage for landlords and to make our life easier section 16 Housing Act 1988 provides (emphasis added):-

It shall be an implied term of every assured tenancy that the tenant shall afford to the landlord access to the dwelling-house let on the tenancy and all reasonable facilities for executing therein any repairs which the landlord is entitled to execute.

As it is an implied term that the tenant shall “afford” access to the landlord, it is in turn an implied (or automatic) right that a landlord may hold keys. (You will also note there is no requirement for prior notice to be given when actually carrying out the repairs, compare with s.11(6) although that doesn’t give an automatic right of entry)

The tenant could rescind this permission anytime

As a landlord has an implied (or automatic) right to hold keys as discussed above, could the tenant rescind this right at anytime? It is respectfully submitted this is not correct. There is no case law to support either way but I think section 11(6) L&TA1985 and section 16 Housing Act 1988 above is sufficient. Parliament could have placed at the end of section 16 that a tenant could opt out of the requirement to afford access upon giving notice for example. However, Parliament have chosen not to and have made the term in every assured shorthold tenancy an absolute right for a landlord with no preconditions attached.

In practical terms, how would this work anyway? Presumably the tenant would need to write to the landlord seeking that the landlord destroys his set of keys? Then what? As with any purported “right” the tenant would presumably need to get a court order enforcing his purported right. Good luck with that is all I can say to the tenant! There is unfortunately no case law to back up what I am saying here (probably for obvious reasons) but I think I can safely say that if a tenant is able to write to me and obtain a court order that I destroy my set of keys, it’s time for me to sell up!

A tenant has a TOTAL RIGHT to change a lock

Again, I cannot agree although I will admit this gives landlord’s more of a problem than if a tenant attempted to seek an order for a landlord to destroy his keys. Firstly though, there is NO “right” for a tenant to change the locks [Bishop v Elliott [1855] 11 Ex. 113]

With respect to locks and keys, bolts, and bars, there can be no question, whether properly called fixtures or not, that the tenant cannot remove them; they are as much part of the house, and to go with it, as the doors or windows to which they may be attached or belong … (Coleridge, J)

To say therefore, that the tenant can change the locks as a “right” is no different to saying they can remove the doors and windows to which the lock is attached.

In addition, a term of the tenancy is perfectly acceptable in prohibiting both landlord and tenant changing the locks as long as the purpose of the provision is for allowing the landlord entry in the event of an emergency [Aslan v Murphy (No 1 and 2) [1989] EWCA Civ 2]. If it were a tenant’s right, I’m quite certain the Office of Fair Trading would have added the clause prohibiting changing locks to their very lengthy and detailed list of example terms guidance that are unlawful under the Unfair Terms in Consumer Contracts regulations 1999 and suggestions of how to reword them (or delete them).

If however, the tenant has changed locks, the problem that arises is what is the loss suffered to the landlord as a result of the breach of the tenancy? This I do accept makes enforcing the term problematic. For assured shorthold tenancies, the procedure could include a section 8 notice on Ground 12 (breach of the term of the tenancy other than rent). But, Ground 12 is discretionary, so although proving the breach of the term will be relatively easy, the court may make an order for possession only if it considers it reasonable to do so [s.7(4) Housing Act 1988]. Therefore the question becomes does the breach warrant possession? Probably not in my view although I would submit it is close and depends on the individual circumstances of the case. A more likely outcome is that the order for possession may be suspended as long as the tenant provides the landlord with a set of keys for example after which the order would cease.

The alternative would be to bring an action to recover damages for the breach or an action to compel specific performance of the contract.

To summarise therefore, there is NO right to change the locks but once the locks have been changed by the tenant, enforcing the breach is going to be difficult without proving some fairly significant loss to the landlord.

HMO’s

I am slightly annoyed because Bill Morgan and Simon Topple quite rightly got in first by asking about HMO’s. I was hoping to be the first one to point that out! This of course is totally different and I would submit makes it an actual offence for a tenant to change the locks (as opposed to above which is a breach of contract) although it would of course depend on the individual circumstances.

Article 14(2)(f) Regulatory Reform (Fire Safety) Order 2005 provides:-

emergency doors must not be so locked or fastened that they cannot be easily and immediately opened by any person who may require to use them in an emergency;

The order only applies to common parts of buildings (and parts of dwellings which lead onto common parts), so for this example let’s say we have a block of three flats with a common hallway. The landlord has put a keyless exit lock onto the main entrance to the flat which leads onto the means of escape (common hallway) which falls under the fire safety order. The tenant now changes the lock to a normal key operated mortice type. Artcile 32(10) provides (emphasis added):-

Where the commission by any person of an offence under this Order, is due to the act or default of some other person, that other person is guilty of the offence, and a person may be charged with and convicted of the offence by virtue of this paragraph whether or not proceedings are taken against the first-mentioned person.

It is therefore respectfully submitted that it is perfectly possible dependant on the circumstances that a tenant may be guilty of breaching the fire safety order. (This is not an exaggerated case, it is based upon an actual case I had personally in one of our properties).

In addition to Article 32 providing “any person” may be guilty of an offence, Article 17 provides that there must be a system of maintenance and anything required under the order is “in efficient working order and in good repair.” Artcle 17(4) also requires “The occupier of the other premises must co-operate with the responsible person…” in this respect. If there is a term of the tenancy prohibiting changing the locks, it is respectfully submitted to then change the locks is not “co-operating with the responsible person”.

In respect of HMO’s for which the fire safety order does not apply (for example a house let to 3 unrelated persons on a joint and several tenancy), then, the Management of Houses in Multiple Occupation (England) Regulations 2006 apply (Similar provisions for Wales). In which case it is the duty of every occupier to:-

allow the manager, for any purpose connected with the carrying out of any duty imposed on him by these Regulations, at all reasonable times to enter any living accommodation or other place occupied by that person; [r.10(b)]

A failure by the tenant to allow entry is a criminal offence and the occupier would be subject to a fine of up to £5,000. [s.234 Housing Act 2004].

Of course throughout this article, if a tenant has changed the locks but freely allows the landlord entry without any fuss, non of the offences mentioned will necessarily apply (except perhaps the fire safety order).

Other miscellaneous

Breach of the term not to change locks

I don’t propose to go into the full law of valuing damages but as a general consideration, the following applies:-

Damages for breach of contract are calculated on the basis that the injured party should be put in the position in which he would have been if the contract had been performed. Accordingly, where the landlord suffers a loss which he would have suffered even if the contract had been performed, he cannot recover damages in respect of it. [C & P Haulage v Middleton [1983] 1 W.L.R. 1461].

In addition, damages must not be too remote. The rules of remoteness may be summarised by stating that damages are recoverable if (1) they may be fairly and reasonably considered as arising naturally, i.e. according to the usual course of things, as a result of the breach or (2) they may reasonably be supposed to have been in the contemplation of the parties when they made the contract as the probable result of a breach. [Hadley v Baxendale (1854) 9 Exch. 341] (So for example the tenancy may say what damages are payable if the tenant changes the locks i.e. to pay for replacement locks). [para 4.090 Woodfall Landlord and Tenant]

This therefore goes back to the problem discussed above. Although it may be a breach of the tenancy to change the locks, the question that then arises is what loss has the landlord suffered? If there is no loss, then it’s difficult to seek damages. However, that does not mean there was no breach of the tenancy. For a good example of this principle of a loss must be suffered in a surveyor negligence case see Community Gateway Association Ltd v Beha Williams Norman Ltd [2011] EWHC 2311 (TCC):-

The defendant should have been aware that the £16 million of further works had been promised and should have brought this to the attention of the claimant. In particular, the defendant should have checked the contents of the surveyors’ report against other records and, had they done so, it would have been clear that the report did not represent a complete list of works. This breach of duty had not, however, led to any loss for the claimant. The additional works which had been promised were not works which any individual tenant was entitled to insist upon but were more in the nature of a “wish-list” of works, an interpretation borne out by the fact that none of the tenants had complained that these works had not been carried out. [summary commentary, housing view 26 September 2011]

The OFT guidance on unfair terms allows the landlord to charge tenants for replacement locks or keys:-

We would also object to a term requiring payment of damages, to an amount equal to the full former rent, for the period that all the keys are not returned at the end of the tenancy. The costs of replacing the locks, where required, or obtaining replacement keys may be considerably less than the penalty charge demanded. [para 3.52]

Repairs

A tenant may disentitle himself from claiming damages for disrepair if he refuses to permit the landlord from carrying out repairs, for example by refusing to admit his builder [Granada Theatres v. Freehold Investment (Leytonstone) [1959] Ch. 592, CA; Shine v. English Churches Housing Group [2004] HLR 42, CA.]

In my judgment, accordingly, the defendants gave the plaintiffs sufficiently clear notice of their intention to do the work and sufficient information as to the nature of that work. What then in those circumstances is the result of their being prevented from doing it and of the plaintiffs repairing the slate roof themselves? On the assumption already referred to (viz. that the work which the defendants intended to do would have been a sufficient compliance with their covenant), the result in my judgment is that on this part of the case the plaintiffs could not succeed. In asking for an order on the defendants to repay them for the work which they themselves did, they are asking in substance for damages for breach by the defendants of their repairing covenant. If, however, the plaintiffs prevented the defendants from performing that covenant and then put it out of the defendants’ power to perform it by doing the work themselves, I cannot see how it can be said that the defendants were then or thereafter in breach at all… (Lord Justice Romer – The Granada Theatres).

If a tenant fails to report defects to his landlord, then even in a case where the landlord’s liability is not dependent on notice of a defect, the tenant’s damages may be reduced because of his failure to mitigate his loss. [Minchburn v. Peck (1988) 20 H.L.R. 392, CA.]. It is respectfully submitted the same principle applies should there be an emergency such as a burst pipe for which the landlord may be entitled to enter without notice but couldn’t because of the tenant’s breach of changing locks. It is certainly possible that any damage caused over and above the initial leak (for example) that was directly caused by the delay in gaining access which otherwise would have been prevented, the tenant may well owe the landlord such losses incurred.

Repairs not harassment

Harassment is a criminal offence under section 1(3) Protection from Eviction Act 1977. However, the offence does not extend to a failure to complete building works which had been innocently begun, in the belief that the tenant had consented to them, [R. v Ahmad (1986) 52 P. & C.R. 346] nor to acts intended to cause a residential occupier to vacate premises temporarily for the purposes of enabling work to be done, and resuming occupation thereafter [Schon v Camden London Borough (1987) 53 P. & C.R. 361]. [para 20.028 Woodfall Landlord and Tenant].

Getting into the property

As has already been suggested in the forum thread, until the keys have been returned a landlord should not assume the tenancy has ended without an order from the court and then the county court bailiff. For only then is the tenancy at an end [s.5(1A) Housing Act 1988]. When deciding whether a tenancy is at an end, the question is not whether the tenant is in occupation but whether the tenant intends to return within a reasonable period (known as animus revertendi) [Wigley v Leigh [1950] 2 K.B. 305; Beck v Scholz [1953] 1 Q.B. 570; Dixon v Tommis [1952] 1 All E.R. 725; Hallwood Estates v Flack (1950) 66 T.L.R. (Pt. 2) 368; Shooter v Gaitley (1936) 80 S.J. 74; Herbert v Byrne [1964] 1 W.L.R. 519; Brickfield Properties v Hughes (1988) 20 H.L.R. 108.]

An intention to return within 10 years has been held as a reasonable period! [Gofor Investments Ltd v Roberts (1975) 29 P. & C.R. 366] and mere absence in prison does not destroy a statutory tenancy [Maxted v McAll [1952] E.G.D. 171. Brown v Brash, [1948] 2 K.B. 247.]

However, assuming there is certainty that the tenancy of a house is terminated, and the tenant has gone away leaving the house locked, the landlord is entitled to break into the house in order to regain possession. [Hillary v Gay (1833) 6 Car. & P. 284] The fact that the tenant leaves furniture in the premises does not make the break-in unlawful [Turner v Meymott (1823) 1 Bing. 158].

The tenant “owns” the home for a specified period

I entirely accept the many comments in the thread that the tenant is in effect an “owner” of the dwelling throughout the period of the tenancy. This is a useful term to explain to novice landlords in a quick and easy sense the massive thing they are doing when letting property. However, those on the forum seem in my view more than novice landlords. The actual reality is that they are in essence owners of the property but importantly that ownership is “subject to conditions”. If any of those conditions are broken then the ownership maybe brought to an end even before the agreed period has elapsed (by way of an order from the court). Just because the tenant owns the property doesn’t mean they can treat the property as though they actually own it in all circumstances and it is for this reason that the terms of the tenancy are so very important.

“I just think too many landlords are lethargic about understanding the law and their obligations.

Did you know for instance, that it is illegal for the Landlord to hold a set of keys to the property? You can hold a set of keys if you get the tenant to sign an agreement to that effect and attach it to the tenancy agreement. That is the only legal way to hold keys.”

The post is here

It is because of this type of content that you often see on free public forums all over the internet nowadays that I have given over visiting them. They can contain good advice too but distinguishing between the two can often be difficult.

I am reminded with this case about the rumour that rent may not be deducted from a deposit which seemed to spread quickly soon after the new tenancy deposit legislation came into effect (which is of course totally untrue).

I went on to the forum and asked under what legislation a landlord may not hold keys and they have gone back to whoever told them this tale but as yet they’ve been too busy to reply. I thought therefore I would reply to the forum for the benefit of all because the landlord can indeed hold keys to the property perfectly lawfully [Aslan v Murphy (No 1 and 2) [1989] EWCA Civ 2]. [Emphasis added]:

…Provisions as to keys, if not a pretence, which they often are, do not have any magic in themselves. It is not a requirement of a tenancy that the occupier shall have exclusive possession of the keys to the property. What matters is what underlies the provisions as to keys.

Why does the owner want a key, want to prevent keys being issued to the friends of the occupier or want to prevent the lock being changed?
A landlord may well need a key in order that he may be able to enter quickly in the event of emergency – fire, burst pipes or whatever. He may need a key to enable him or those authorised by him to read meters or to do repairs which are his responsibility. …” [Lord Donaldson of Lymington Mr at Paras 14 & 15].

I could go one step further and suggest that a landlord should indeed hold a set of keys. We all know it is the landlord’s obligation to carry out repairs under section 11 Landlord and Tenant Act 1985. Any works that are required must be carried out “expeditiously” [O'Brien v Robinson [1973] A.C. 912]. The landlord may not contract out of his repairing obligations (so ask the tenant to organise repairs for example) [s.11(4) Landlord and Tenant Act 1985]. If therefore, the tenant is unable to allow the landlord into the property due to work commitments for example but does allow the landlord to enter, I fail to see how the landlord can carry out the works “expeditiously” if the landlord does not hold a key.

I should quickly add, if the tenancy contains a provision that the landlord is prohibited from retaining a key (which I have never seen but in theory possible) then of course to hold a key could be a breach of the tenancy. Although, I’m not entirely sure what loss the tenant would suffer as a result of this breach.

I hope this kills off the rumour in it’s tracks!

Example risk assessment form

Blank risk assessment form

During inspection of the property during June 2010 numerous breaches of the Management Regulations were identified. The inspecting officer noted the automatic fire detection installation was defective and posed an imminent risk of serious harm to occupiers from the hazard of fire. Miss Gamon was immediately required to ensure the fire alarm was working by having it tested by a competent person. Should she have failed to do so emergency action by the Council would have been necessary to protect the occupiers.

Miss Gamon was informed of the HMO Management Regulations breaches by the Council but failed over a significant period of time to carry out necessary works.

Works specified included the requirements to remove stored combustibles restricting safe use of the means of escape in the property, make safe the loose and cracked concrete tiled entrance pathway steps, remedy penetrating damp to the ground floor porch and remove large accumulations of refuse to the rear of the property.

In December 2010 a final inspection was undertaken at which time the fire alarm was again noted as being defective and works to remedy the identified issues under the Management of Houses in Multiple Occupation Regulations had not been done.

Miss Gamon pleaded guilty to 4 separate offences relating to her failure to maintain the fire precautions, means of escape route in the event of fire, communal areas and outbuildings at the property. Total fines of £1,700 were issued by the court with costs of £173.67 awarded to the Council and a £15 victim surcharge.

Cornwall Council cabinet member for housing Mark Kaczmarek said:

“Cornwall Council values the contribution made by well-managed houses in multiple occupation within the local housing market but will continue to intervene in these types of property to ensure minimum standards are maintained. As indicated by this case there are landlords who flout the law by failing to ensure their properties conform to legal requirements. These people can rest assured that in order to protect the health safety and welfare of tenants in private rented accommodation the Housing Service will make every effort to bring them to book. I want to congratulate the Private Sector Housing team for their good work in bringing this successful prosecution.”

Policy commitment: Chris Huhne announced that the  Government will regulate to  drive-up the energy efficiency performance of the Private Rented Sector.

Legislative proposal: 

• From April 2016 landlords of residential properties will not be able to unreasonably refuse requests from their tenants for consent to energy efficiency improvements, where financial support is available, such as the Green Deal and/or the Energy Company Obligation (ECO).

• Following this, from April 2018, all private rented properties must be brought up to a minimum energy efficiency rating of ‘E’.  This provision will make it unlawful to rent out a house or business premise that does not reach this minimum standard.

• These requirements are subject to there being no upfront financial cost to landlords. Therefore, landlords will have fulfilled the requirement if they have either reached “E” or carried out the maximum package of measures funded under the Green Deal and/or ECO (even if this does not take them above a ‘F’ rating).

• The Energy Bill allows the Secretary of State to exempt certain types of properties from the Private Rented Sector requirements. These exemptions will be consulted upon as part of the secondary legislation ahead of 2016 and 2018.

Local Authorities will enforce the domestic minimum standard regulations, with the ability to impose a civil fine of up to £5000.  A Local Weights and Measures Authority will enforce the non-domestic minimum standard regulations; the level of civil penalty will be defined in secondary legislation

Background: 

The Green Deal offers the Private Rented Sector a real opportunity to improve the energy efficiency of its stock. Under the Green Deal, landlords will be able to make energy efficiency improvements at no upfront financial cost to themselves. Tenants will repay the cost of the measures through their energy bill savings, whilst enjoying warmer properties and lower energy bills. In this way the Green Deal is mutually beneficial to both landlords and tenants.

We expect landlords will respond positively to this offer, particularly as the Private Rented Sector has some of the biggest gains to be made. For example, the residential Private Rented Sector has the largest proportion of lowest-rated (EPC band G) properties of all tenures (5.8% compared with 3.4% in owner-occupier).

In the non-residential sector, approximately 62% of properties are rented. Currently around 18% of registered non-residential buildings have an EPC rating of F or G.

DECC has committed to working with the sector, in advance of regulations coming into force, to encourage take up of the Green Deal.  Landlords will be able to plan energy efficiency improvements effectively ahead of regulation, taking advantage of void periods and normal upgrade cycles.

Next Key Event:

Working with landlord organisations to unblock barriers and encourage uptake of the Green Deal ahead of the introduction of regulations in 2016 and 2018.

The question of whether plaster on a wall is part of the “structure” (and therefore part of the landlords duty to keep in repair under section 11 Landlord and Tenant Act 1985) has been a long running one.

Background to the question of whether plaster is part of the structure

In Quick v. Taff Ely Borough Council [1986] QB 809 the landlord council conceded for the purposes of the appeal that the plaster in the house was part of its structure and so that decision provided no authority on the point. In Staves & Staves v. Leeds City Council (1991) 23 HLR 107, a decision of the court of appeal, a like concession was also made by the landlord council. Given the concession, that case also cannot be regarded as authority on the point. In Niazi Services Ltd v. van der Loo [2004] 1 WLR 1254 an issue came before the court of appeal as to whether plasterwork forms part of ‘the structure’ of a dwelling-house within the meaning of section 11 of the 1985 Act. Having recognised it as a difficult question, the court decided not to answer it.

The point was, however, the subject of decision by Mr Recorder Thayne Forbes QC in Irvine v. Moran (1992) 24 HLR 1; [1991] 1 EGLR 261. The lease there in question was one to which section 32 of the Housing Act 1961 applied, but section 11(1) of the 1985 Act is, so far as material, in identical terms. Before the judge were preliminary issues as to which of several items – including ‘internal wall plaster’ – were part of ‘the structure and exterior of the dwellinghouse’ and so within the landlord’s repairing covenants imposed by section 32 [now section 11 L&T 1985]. Mr Recorder Thayne Forbes was guided to some extent by and followed the approach suggested by Lord Justice Megaw in Campden Hill Towers Limited v. Gardner [1977] 1 QB 823, and said this:

‘… As I have said, section 32(1)(a) and the words “structure of the dwellinghouse” mean something less than the dwellinghouse overall and limited to the essential material elements that go to make up the structure of the dwellinghouse. It seems to me that internal wall plaster is more in the nature of a decorative finish and is not part of the essential material elements which go to make up the structure of the dwellinghouse. I therefore hold that internal wall plaster and, for the same reasons, the door furniture do not form part of the structure of the dwellinghouse, bearing in mind I have held that those words mean something less than the overall construction.’

Until now therefore this was the general consensus namely that plaster was not part of the structure and was “more in the nature of a decorative finish”.

Background to the case

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Ms Grand was formerly Mr Gill’s tenant of the second floor (top) flat in a three-storey building. She originally had a 12-month assured shorthold tenancy from 21 November 2004; and the tenancy continued as a periodic tenancy. Ms Grand occupied the flat with her daughter Alison. The flat comprises two bedrooms and a living room, kitchen, bathroom and lavatory. Mr Gill has a long leasehold interest in the flat but no interest in the remainder of the building.

The appeal essentially related to three main points that were being appealed from the previous hearing:

A. Damp and Mould

Ms Grand’s main complaint was of damp and mould throughout the flat. The damp was apparent shortly after she moved in and got worse over time. It was evident on the walls of the living accommodation and became so bad that the smaller bedroom (Alison’s) became uninhabitable and Alison had to move into the living room. Curative works to the damp problem were only done in April 2009. The earlier judge found the complaint about the damp to be established.

B. Water ingress

Another complaint – found by the earlier judge to be associated with the damp and mould and causally connected with it — was about the undisputed ingress of water into the flat through the ceiling, which was from two sources. The first was a leaking roof above the ceiling. The second was the guttering at the level of the roof. The roof was not, however, part of the premises let to Ms Grand and the earlier judge found that the responsibility for the repair of the roof and guttering lay with the head landlord.

C. An inadequate boiler

The complaint here was that the gas-fired boiler was old, extensively corroded, broke down frequently and worked inefficiently. The judge accepted Ms Grand’s evidence that during a total of 207 days (give or take a day or so) between 22 November 2004 and 24 November 2007 the boiler did not function at all. It was replaced in November 2007, following which there was consistent proper heating in the flat. During the periods prior to that when the old boiler was working, it failed to produce sufficient heat to provide a warm or comfortable environment and to provide hot enough water for a hot shower. The ambient temperature that it achieved was just 15 degrees centigrade, which the judge found was inadequate. Ms Grand’s evidence in relation to the boiler was not challenged.

At the earlier hearing, the judge awarded damages for the former tenant as follows:

In assessing the damage and disrepair I have regard to and follow the approach approved by the Court of Appeal in Wallace v. Manchester City Council [1998] 3 EGLR 38. I have regard to the rent that was payable. I have regard to the discomfort and inconvenience. I approach this case on the basis that it is right to take both aspects into account, so that I approach it as a mixture of the two. I take into account the rent in assessing damages for distress, discomfort and inconvenience. The most important damage, so to speak, was the consequence of the damp and mould, but it seems to me that on the evidence it is not possible to say that more than a ten per cent contribution to the damp and mould was made by the lack of adequate heating coupled with the small matters of the ingress of water into the living room from the guttering and the broken window which was repaired after a year or so. On the basis of full liability for that part of the claim I would have considered that damage in the region of £2,000 per annum would be appropriate, that is to say, £6,000 in all, but since I find the defendant is responsible only to the extent of ten per cent, the award under this head is only £600.

 

A much bigger award arises in relation to the boiler problem. The 207 days, amounting to approximately 30 weeks, during which there was no heating should, in my judgment, be dealt with by an award of damages of £1,750. The remainder of the first three years of the tenancy, during which there was inadequate heating coming from the boiler, should be compensated at the rate of £1,200 per annum. In setting that figure I have regard to the decision mentioned in Islington v. Spence in July 2001, Legal Action 26 in Clerkenwell County Court, referred to by [counsel for Mr Gill] in paragraph 43 of his skeleton argument, in which the court awarded £1,100 per annum for the period during which, after heating had been restored, the radiators failed to heat up properly, and I add a little to take account of [inaudible] since 2001, so that produces a figure of £3,600 for three years, less approximately £700 for 30 weeks covered by the award of damages for there being no heating at all, so producing a total under this head of £2,900. This means that damages for disrepair will be awarded at a total figure of £5,250.

 

As to the damages for breach of the covenant for quiet enjoyment, in the circumstances it seems to me it is a relatively modest sum. It will be appropriate to cover the distress and inconvenience suffered by [Ms Grand] and I fix that at £350. So the total damages will be £5,600

The Appeal

The main ground of appeal is that it is said by the former tenant that the judge was wrong to apply the 90% discount to the damage caused by the damp. The judge’s reasoning was that only 10% of the cause of the damp and mould could be attributed to fault on the part of the landlord Mr Gill, mainly because of the inadequacy of the boiler. The former tenant submitted that in that respect the judge was wrong and he asked to increase the damages awarded under this head from £600 to £5,000.

It was accepted that Mr Gill was not responsible for the repair of the defective roof and guttering, which caused some of the water ingress. However, part of the reason for the discounted reward was because the earlier judge had held that the landlord was not liable to repair the internal plaster. The former tenant submitted this was wrong.

Mr de Waal, for Ms Grand, submitted that the decision in Irvine v. Moran as to plaster on internal walls not forming part of the structure of a dwellinghouse was in principle wrong. He accepted that, applying Mr Recorder Thayne Forbes’s guidance as to the meaning of ‘the structure … of the dwellinghouse’, internal plasterwork does not give the house stability. But it does, he said, contribute to its appearance and shape. It is, he said, artificial to regard internal plasterwork, whether on walls or ceilings, as purely decorative. The relevant distinction is, he said, between decoration and fittings on the one hand and everything else making up the dwellinghouse on the other.

The court did not find the question as to whether plaster formed part of the structure an easy one but accepted that they must answer the question.

Leading judgment of Lord Justice Rimer : (paras 25 – 27, highlights added)

For myself, whilst I would accept and adopt Mr Recorder Thayne Forbes’s observations as to the meaning of ‘the structure … of the dwellinghouse’ as providing for present purposes, as Neuberger LJ put it, a good working definition, I am respectfully unconvinced by his holding that the plaster finish to an internal wall or ceiling is to be regarded as in the nature of a decorative finish rather than as forming part of the ‘structure’. In the days when lath and plaster ceiling and internal partition walls were more common than now, the plaster was, I should have thought, an essential part of the creation and shaping of the ceiling or partition wall, which serve to give a dwellinghouse its essential appearance and shape. I would also regard plasterwork generally, including that applied to external walls, as being ordinarily in the nature of a smooth constructional finish to walls and ceilings, to which the decoration can then be applied, rather than a decorative finish in itself. I would therefore hold that it is part of the ‘structure’. I would accordingly accept that the wall and ceiling plaster in Ms Grand’s flat formed part of the ‘structure’ of the flat for the repair of which Mr Gill was responsible.

 

It follows that I consider that the judge should also have found that the disrepair of the damaged plasterwork meant that Mr Gill was in that respect in breach of his repairing obligations and should have compensated Ms Grand appropriately. I admit to at least some uncertainty as to whether, in arriving at his ‘full liability’ figure of £6,000 in paragraph 33 the judge was including the plasterwork damage, but I infer that he was; and, consistently with that, Mr de Waal’s complaint was that he was wrong to discount the £6,000 figure by as much as 90%. I propose to proceed on that basis. He should, in my view, therefore have awarded Ms Grand (i) full compensation for the plasterwork damage, and (ii) discounted compensation for the remainder of the damage to which the inadequate heating contributed (there was no challenge to the principle of the latter approach that the judge adopted in paragraph 33).

 

Mr de Waal submitted that, because of the judge’s error in relation to the plasterwork, an appropriate figure to substitute for his £600 one was the figure of £5,000. I respectfully disagree. Whilst I agree that Mr Gill should be 100% liable for the plasterwork disrepair, I consider that to regard that element of his liability as representing a figure approaching £5,000 of the judge’s ‘full liability’ £6,000 figure as unrealistic. This court is not in as good a position as was the judge to make the required assessment but the sums involved are, in my view, of too modest a nature to justify a remission for a re-assessment by the judge. I consider, therefore, that we should make the assessment ourselves although I recognise that that will require the wielding of a fairly broad brush. I would assess the plaster damage as representing £750 of the judge’s £6,000; and so would assess the balance of the damage at £5,250. On that basis, the figure I would substitute for the judge’s £600 figure is £750 + (£5,250 x 10%), or £1,275. The result is that the overall damages award that the judge made ought, I consider, to be increased from £5,600 to £6,275 and paragraph 1 of his order of 7 May 2009 adjusted accordingly. I would so order.

Lord Justice Lloyd :

… Accordingly I would hold, as a general proposition, that plaster forming part of or applied to walls and ceilings is part of the structure of the relevant premises.

And, Lord Justice Thomas :

… Plaster forming part of or applied to walls and ceilings is part of the structure of the relevant premises.

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Set off

One of the main problems of the notice seeking possession (section 8 notice) usually used for rent arrears claims is the tenant’s make a claim against the landlord for random disrepair issues, often never previously notified to the landlord (I had exactly this type of case where the tenant pleaded in court that he had had no heating or hot water for 12 months which on immediate investigation turned out that his gas meter had been removed by the gas board!)

The tenant is entitled to set off against a claim for rent a counterclaim for damages for breach of the landlord’s repairing obligations[amember_protect levels='keywee' user_action='error' user_error='amember_error_default_user' visitor_action='error' visitor_error='amember_error_default_guest'] [British Anzani (Felixstowe) v International Marine Management (U.K.) [1980] Q.B. 137; Melville v Grapelodge Developments [1979] 39 P. & C.R. 179; Asco Developments v Gordon [1978] 248 E.G. 683.] Equally, a landlord is entitled to set off a claim for rent or service charges against a tenant’s claim for damages for disrepair. Filross Securities v Midgeley [1998] 3 E.G.L.R. 43.

A set off is a true equitable defence; and accordingly may be relied on even if it would otherwise be statute barred (Filross above)

The time of the set off

If there are genuine disrepair issues at the hearing, it is lawful for the tenant to seek that any damages be set off from rent owing. This can, depending on the amounts in question, extinguish the rent and make the section 8 claim fail (because the tenant may no longer be two months or more in arrears).

It is important however to know the date of when the set off takes place i.e. is it when the disrepair became an issue or is it at the time of the court hearing (when there will likely be more arrears than the first option)?

In Fearns, the High Court held that except where there is an agreement between the parties setting a date of set off, it is for the Court to set the date. Also, while it can decide to set the offset of the liability to some earlier or later date CPR 40.13(2) the starting point for the date of offset must be the date of the order itself, as that is the point at which the liabilities were finally determined.

Therefore the correct approach in the rent arrears/disrepair scenario is for the Court to establish the arrears of rent, to establish the amounts due as compensation for disrepair, calculate the interest due on both sums, AND THEN offset the two sums against one another. If the tenant wishes to argue that the offset should happen at some other date then it is for them to do so and the Court has a discretion to allow it.
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I have searched every where for a landlords guide to the Equality Act 2010 and surprisingly there is nothing available so I will give it a go here. In particular, the most common duty under the Act for landlords will be in relation to adapting premises for disabled persons.

Background

The Equality Act 2010 primarily took effect on 1 October 2010 and it consolidates and replaces acts and regulations relating to discrimination for protected characteristics.

Protect Characteristics

The protected characteristics are:

• age;
• disability;
• gender reassignment;
• marriage and civil partnership;
• pregnancy and maternity;
• race;
• religion or belief;
• sex;
• sexual orientation.

[s.4 Equality Act 2010]

Direct Discrimination

A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.

If the protected characteristic is age, A does not discriminate against B if A can show A’s treatment of B to be a proportionate means of achieving a legitimate aim.

If the protected characteristic is disability, and B is not a disabled person, A does not discriminate against B only because A treats or would treat disabled persons more favourably than A treats B.

If the protected characteristic is race, less favourable treatment includes segregating B from others.

[s.13 Equality Act 2010]

Discrimination arising from disability

A person (A) discriminates against a disabled person (B) if—

A treats B unfavourably because of something arising in consequence of B’s disability, and A cannot show that the treatment is a proportionate means of achieving a legitimate aim.

This does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.

[s.15 Equality Act 2010]

Adjustments

For the purposes of this article I will split the duty to make adjustments into three categories, namely:

• Adjustments to the services a landlord (or agent) offers including adjustments to lettings literature and tenancy agreements

• Structural alterations to office premises in connection with letting

• Structural adjustments to the tenancy property itself including physical adjustments such as ramps or stair lifts for example

[amember_protect levels='keywee' user_action='error' user_error='amember_error_default_user' visitor_action='error' visitor_error='amember_error_default_guest']####Adjustments to the service including literature and tenancy agreements

The Act states that where the absence of an auxiliary aid or service places a disabled person at a substantial disadvantage, and this relates to the provision of information, the steps which it is reasonable for a service provider to take, include steps to ensure that the information is provided in an accessible format. [para 7.48 Equality Act 2010 Code of Practice]

This would include for example printed literature and tenancy agreements to be available in larger print formats for the visually impaired.

Alterations to office premises

The Equality Act 2010 Code of Practice provides a useful example concerning a property selling agent but the principle equally applies to letting agents. Para 7.59:

An estate agent is marketing a new residential property development. It decides to hold detailed presentations for prospective buyers at the company’s premises, at which there will be a talk illustrated with slides. However, the only meeting room available in the building is along a narrow corridor and up a short flight of stairs making access impossible for some and for others allowing access only with discomfort or difficulty. The estate agent obtains a quotation to make its premises more accessible, but the cost is more than it anticipated, and it delays making the alterations.

When disabled people, who are unable to attend a presentation because the room is inaccessible to them, make enquiries, they are merely sent copies of comparatively brief promotional literature. This is unlikely to be a reasonable alternative method of making the service available, and may well leave these disabled people at a substantial disadvantage.

If an issue arose under the Act as to whether the estate agent had failed to comply with its obligations to disabled people, consideration would be given to whether it would have been reasonable to avoid the substantial disadvantage by altering or removing the relevant physical features, or by avoiding them (for example, by holding the meeting at another venue) or whether there was a more effective alternative method of providing the service that could reasonably have been adopted.

If the managing agents office premises are rented and consent is required from their landlord, the Equality Act provides it is reasonable not to make any alterations until the landlord gives consent (but the managing agent must seek the consent and the landlord must not unreasonably withhold consent)

Alterations to let premises

There is no requirement under the Act requiring a landlord to alter a “physical feature” (see below) of the dwelling itself but see below for common parts. However, if a term of the letting prohibits the tenant from making alterations puts the disabled person at a disadvantage, a landlord is required to change the term only so far as is necessary to enable the tenant to make alterations to the let premises so as to avoid the disadvantage (and would be reasonable).

Physical features include steps, stairways, kerbs, exterior surfaces and paving, parking areas, building entrances and exits (including emergency escape routes), internal and external doors, gates, toilet and washing facilities, public facilities (such as telephones, counters or service desks), lighting and ventilation, lifts and escalators, floor coverings, signs, furniture, and temporary or movable items (such as equipment and display racks). Physical features also include the sheer scale of premises (for example, the size of a shopping centre). This is not an exhaustive list. [para 7.61 Equality Act 2010 Code of Practice]

There seems no reason why the Court of Appeal ruling Richard Court (Swansea) Ltd v. Williams 2006 where a landlord was under no obligation to install a stair lift won’t apply under the new Equality Act.

The requirements in relation to let premises are contained in Schedule 4 to the Equality Act.

The most notable requirement on a landlord (or managing agent) is the duty to provide an “auxiliary aid or service”. An auxiliary aid or service is defined by r.8 The Equality Act 2010 (Disability) Regulations 2010 as:

(a)the removal, replacement or provision of any furniture, furnishings, materials, equipment and other chattels (but does not include the “provision” of any item which would be a fixture when installed.)

(b)the replacement or provision of any signs or notices;

(c )the replacement of any taps or door handles;

(d)the replacement, provision or adaptation of any door bell, or any door entry system;

(e)changes to the colour of any surface (such as, for example, a wall or door).

Under (a) above, it seems “equipment” may include an audio-visual fire alarm [para 7.47 Equality ACt Code of Practice]. However, it is our view that if such an item were requested it wouldn’t be an auxiliary aid because it would be a fixture when installed (and therefore not a duty of landlord or agent to install). This would in particular be true in our view if the specialist fire alarm required hard wiring into the mains and permanently fixing to the ceiling.

However, bear in mind using the example of an audio-visual fire alarm above, if the property is an HMO (including building converted into self contained flats) there must be “adequate” fire precautions which is the landlords obligation under the Housing Act 2004. In addition, where there are communal areas, a risk assessment is required under the Regulatory Reform (Fire Safety) Order 2005 which requires that the “occupiers” be taken into account when deciding what fire precaution equipment is required.

Common Parts

It should be noted I have been unable to locate a commencement order for paragraphs 5, 6 and 7 of Schedule 4 which is detailed below so I’m not entirely sure as I write this whether the parts discussed below in relation to common parts are yet in force. However, it’s still worthy of discussion (because it might be in force and I just couldn’t find it.)

In relation to common parts, a disabled person may request structural alterations (known as physical features in the act). Consent must be requested to carry out the works, and that consent must not be unreasonably withheld. If such a request is made, all persons (such as other occupiers who share the common parts) who may be affected by any alteration must be consulted.

If the landlord agrees works are reasonably required, the landlord and the disabled person must agree in writing the rights and responsibilities of each of them in relation to the step.

The agreement must, in particular, make provision as to the responsibilities of the parties in relation to—

(a)the costs of any work to be undertaken;

(b)other costs arising from the work;

( c)the restoration of the common parts to their former condition if the relevant disabled person stops living in the premises.

It is always reasonable before the agreement is made for the landlord to insist that the agreement should require the disabled person to pay—

(a)the costs referred to in paragraphs (a) and (b) above, and

(b)the costs of the restoration referred to in paragraph (c ).

Any agreement made passes with the interest in land with any subsequent disposal of the property.

What is meant by ‘reasonable’ steps?

The duty to make reasonable adjustments places service providers under a responsibility to take such steps as it is reasonable, in all the circumstances of the case, to have to take in order to make adjustments. The Act does not specify that any particular factors should be taken into account. What is a reasonable step for a particular service provider to have to take depends on all the circumstances of the case. It will vary according to:

• the type of service being provided;

• the nature of the service provider and its size and resources; and

• the effect of the disability on the individual disabled person.
  However, without intending to be exhaustive, the following are some of the factors which might be taken into account when considering what is reasonable:

• whether taking any particular steps would be effective in overcoming the substantial disadvantage that disabled people face in accessing the services in question;

• the extent to which it is practicable for the service provider to take the steps;

• the financial and other costs of making the adjustment;

• the extent of any disruption which taking the steps would cause;

• the extent of the service provider’s financial and other resources;

• the amount of any resources already spent on making adjustments; and

• the availability of financial or other assistance.

[paras 7.29 – 7.30 Equality Act 2010 Code of Conduct]

Summary

In summary,

• A managing agents office may need the alteration of physical features in order to comply with the duties under the Act.

• Tenancy agreements and letting literature will generally need to be made available in other formats.

• There is no requirement to alter a physical feature of a let dwelling (but you must not unreasonably withhold consent for the tenant to make reasonable alterations)

• A landlord will normally have to provide an auxiliary aid or service which is:

  • the removal, replacement or provision of any furniture, furnishings, materials, equipment and other chattels (but does not include the “provision” of any item which would be a fixture when installed.)

  • the replacement or provision of any signs or notices;

  • the replacement of any taps or door handles;

  • the replacement, provision or adaptation of any door bell, or any door entry system;

  • changes to the colour of any surface (such as, for example, a wall or door).

Useful Links

Equality and Human Rights Commission

Equality Act 2010

The Equality Act 2010 (Disability) Regulations 2010

Equality Act Codes of Practice[/amember_protect]

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The drainage system serving my property is blocked, who is responsible for unblocking it?

Before this can be answered, we need to find out whether or not the blockage you are suffering from is a blocked drain, a blocked private sewer or a blocked public sewer.

People use the terms ‘drain’ and ‘sewer’ very loosely, without really understanding what they mean. The definitions can be found in section 343 Public Health Act 1936 but to summarise:

Drain

A pipe that only takes drainage from a building or buildings within the same property boundary is called a drain. The water that drains into it may be surface water (for example rainwater from the roof) and/or foul water (for example, bathroom or toilet waste). The responsibility for unblocking a drain or repairing any defects on it lies with the owner or occupier of the building. On a normal assured shorthold tenancy, this will normally be the duty of the landlord [s.11 Landlord and Tenant Act 1985].

This is the case, even if the problem on the drain is beyond the boundary of the building, or under a road or pavement.

Sewer

From the point at which a pipe takes drainage water from two or more buildings that are not within the same property boundary, it is called a sewer. A sewer that was constructed after 1 October 1937 is called a private sewer unless it has been adopted by a water authority under section 102 Water Industry Act 1991. The law generally requires that the owners or occupiers of the properties that use and connect into the sewer above the point of blockage, to remove the obstruction and/or repair it. They all must keep it in good condition, regardless of whose land the problem is located on.

Generally, sewers constructed before 1 October 1937 are known as public sewers, but there can be exceptions to this. The water authority will normally be responsible for clearing blockages, maintaining and repairing public sewers.

Therefore to summarise:

• If the pipe blocked serves only your property it is your responsibility as owner or occupier to clear the blockage.
• if the pipe blocked serves your property and some of your neighbours it is a sewer. If your property was built before 1937 the sewer will most likely be the responsibility of the water authority.
• if the pipe blocked serves your property and some of your neighbours and the properties were built after 1937, then it will be classed as a private sewer unless it has since been adopted by the water authority. It is the responsibility of you and all your neighbours who drain into the sewer above the point of the blockage to clear it.

I have established the blockage is on a private sewer serving my property and my neighbours. What can I do?

Unless there is some agreement to the contrary (for example the terms of a lease on a long leasehold property) it is the joint responsibility of you and your neighbours to clear the blockage regardless of whose land the blockage is on [Duke of Westminster v. Guild [1985] Q.B. 688]. You must therefore jointly arrange to have the sewer cleared and agree how you share the costs.

My neighbour will not pay for their share of the costs. What can I do?

Unfortunately, the only way costs can be shared out, if neighbours will not agree to pay their share, is by the Council serving a notice under section 35 Local Government (Miscellaneous Provisions) Act 1976 on all persons responsible. The notice has to give persons 48 hours to clear the blockage before the local authority can then go and clear the blockage. They will then bill all persons (including yourself) for the works.

Why am I responsible for drainage problems that are not on my land?

Unfortunately, Drainage Law is not dependent on who owns the land which the problem is on. It depends upon who drains into the private sewer above the point of blockage or defect. If your drainage waste goes through that pipe you may be partly responsible, irrespective of where the problem is.

However, under section 35(4) Local Government (Miscellaneous Provisions) Act 1976, you may appeal the notice within six weeks:

A person on whom a notice is served in pursuance of the preceding subsection may, within the period of six weeks beginning with the date of service of the notice, appeal to the county court against the notice on the ground that it would be reasonable for the whole or part of the sum specified in the notice to be paid by some other person who is an owner or occupier of premises served by the sewer in question.

Useful Links

Kirklees Council where some of this content is taken

A Sunday Times article on this subject[/amember_protect]

Before entering any premises in exercise of the power conferred by subsection (3), the authorised person or proper officer must have given at least 24 hours’ notice of his intention to do so—

(a) to the owner of the premises (if known), and
(b) to the occupier (if any).”

24 Hours notice is not required where:

“the local housing authority consider that any premises need to be entered for the purpose of ascertaining whether an offence has been committed under section 72, 95 or 234(3)”.

These offences are:

• operating an unlicensed HMO which is required to be licensed under Part 2 of the Act (section 72(1));
• exceeding the specified occupancy limit in a licensed HMO (section 72(2));
• failing to comply with a licence condition in a licensed HMO (section 72(3));
• operating an unlicensed property which is required to be licensed under a selective licensing scheme (section 95(1));
• failing to comply with a licence condition in a property licensed under a selective licensing scheme (section 95(2)); or
• failing to comply with the HMO Management Regulations (section 234(3)).

However, it is important to note that local authorities must still give at least 24 hours notice when investigating possible offences of failing to comply with Improvement Notices and/or (Emergency) Prohibition Orders under Part 1 of the Act. Where there is a problem with gaining access, or where giving notice may defeat the purpose of entry, the authorised officer may need to consider obtaining a warrant.

In Evans v LB Campden, the improvement notice was quashed because the local authority had failed to give the notice.

“the purpose of section 239(5) is to give a mandatory warning to the occupiers and owners of the inspection and some opportunity to deal with it before the inspection and the service of a notice. Lack of warning in this instance deprived Mr. and Mrs. Evans of such an opportunity and in the Tribunal’s view has invalidated the subsequent steps taken by the respondent in serving the Notice and it cannot now be relied upon.”

In Martin Thomas v Bristol CC it was confirmed:

“when Parliament gave local housing authorities the power to enter properties in order to exercise what may be draconian powers, it intended that both the owner and the occupier of the property should have notice so they could prepare for the inspection.”

In St John the Baptist College, University of Oxford v Vale of White House DC which was an appeal against an improvement notice, the local authority had been invited in to the property and so gave no notice.

“The inspection by the respondent’s officer was not illegal or unlawful as he was invited into the premises but the inspection could not form the basis of an enforcement action under Housing Act 2004.”

See also Williams v Monmouthshire County Council May 2009 RPT/HA04/S11

However, going against the grain of the above decisions, in Cheltenham Construction Ltd. v Gloucester CC, Mrs Thomas, the council officer had been invited to inspect the property, by the tenant. As she was concerned about fire safety, Mrs Thomas visited again on 22nd August with a Fire Prevention Officer. The officers agreed there was a category 1 fire hazard, which justified Emergency Remedial Action. Works were carried out and a notice was subsequently served on the owner.

The Tribunal accepted that the 24 hour notice had been given to the owner in respect of the second visit, however they did not consider this notice was necessary. The tribunal said (paragraphs 47-48 of the decision)

“No question arises as to whether or not the Respondent gave the appropriate notice of that visit because Mrs Thomas went to Flat 3 at the invitation of the tenant………There is no need for the respondent to exercise that power if it is invited into the property……..It follows that there was no requirement to give notice under Section 239(5) to either the owner or the occupier.”

It would seem that if a notice of inspection has been served on a couple of occasions previously but the landlord didn’t attend and the local authority are subsequently invited in (in this case 3 days after the notice) then enforcement action may be taken as a result of the inspection. [Craig v Milton Keynes Council (2011)].

LACORS (now Local Government Regulation) provide some useful guidance (where this article is sourced) and they state in this guidance:

LACORS does not believe it is necessary to give 24 hours notice to the owner and occupier if the LHA has been contacted by the occupier and invited into the property to carry out an inspection. In these circumstances, the authorised officer is not formally exercising their power of entry – they are simply responding to a request from the occupant. However the likely need for enforcement action needs to be considered before the visit and a decision made on whether to give notice of entry.

And continues …

One reason for reaching this decision is the nonsensical position that would otherwise be reached if the opposite position applied. For example, assume an authorised officer had been invited into a property by the occupier to investigate an urgent complaint of dangerous electrics. If, on visiting the property, the authorised officer discovered live electrical cables at floor level in a young child’s bedroom and considered that the situation presented a category one hazard with an imminent risk of serious harm, should the officer be able to proceed with Emergency Remedial Action (ERA)? If 24 hours notice of inspection must be given to the owner and occupier, the answer would be no – the officer would need to walk away and leave the occupants at imminent risk of harm, only to return and re-inspect the property once at least 24 hours notice had been given. The decision to include ERA powers in the Act implies the LHA must be able to respond promptly when they encounter such a situation. If this advice is later overturned by a court or lands tribunal decision that sets precedence, LACORS believes that the Government would need to consider changes to the primary legislation.

It is respectfully submitted that although LACORS are providing a very extreme example above, they are missing the point. The law provides that a landlord does not have to carry out works of repair under section 11 Landlord and Tenant Act 1985 until he is either aware or could reasonably be aware works are required or is put on notice of the defect. From that point, the work must be done “expeditiously” [O'Brien v Robinson [1973] A.C. 912]. Rather than walking away as suggested above, it is submitted they shouldn’t have gone round in the first place without giving prior notice (which s.239(5) makes clear).

The clear intention in our view behind the requirement to give notice is not just to keep an element of control over local authorities but also as was stated in Martin Thomas v Bristol CC and Evans v LB Campden above that the purpose is to allow both owner and occupier to prepare and have an opportunity to get works done before the inspection.

If notice is not required where the LA has been invited as suggested by LACORS, the landlord has no opportunity whatsoever to comply with his section 11 duty and promptly get the works done before the inspection takes place. Afterall, using the example provided by LACORS above, it is unlikely that situation literally arose in a split second. It will no doubt have been in that situation for some time and a further 24 hours is unlikely to make any difference in reality.

The purpose of notice is surely to allow the landlord to promptly act before any inspection takes place and quite rightly avoid any emergency action that may be taken by the local authority? If the landlord has not had time to go prior to inspection but attends at the time of the inspection it must surely be better that the landlord could say “come back in a couple of hours and the electrics will be fixed“.

It is entirely accepted in the example given above, if after 24 hours notice the landlord fails to take action prior to inspection or fails to attend the inspection, then, the local authority is quite within their moral and legal rights to carry out the works (if that is the appropriate course of action).