By Charlotte Mackenzie, Associate Solicitor
A case heard in the Court of Appeal this week serves as a poignant reminder to landlords of both commercial and residential leases to be mindful of their duties under the Defective Premises Act 1972.
The case of Rogerson v Bolsover District Council was decided on appeal in favour of Rogerson, the tenant, who had fallen into a void in the garden used for sewerage purposes through a corroded inspection cover owned by the water company, Severn Trent.
Under the terms of the lease, Bolsover District Council, as landlord, had an obligation to maintain the structure and exterior of the property; a common obligation in leases where a landlord owns and lets separate parts of a building, such as a residential or office block. It was accepted by the court that the cover in the garden did form part of the property’s structure and exterior.
Further, section 4 of the Defective Premises Act 1972 imposes a statutory duty of care on landlords to a tenant or anyone at the property that might be affected by any defects in the property’s state of repair and this arises where the landlord has obligations to maintain and repair, or where the lease gives the landlord a right to enter the property to carry out any maintenance or repair.
The landlord’s duty is to take such care as is reasonable in all the circumstances to ensure that the tenant or anyone affected is reasonably safe from personal injury or damage that may be caused by a relevant defect; a defect that exists at or after the material time and arising from or continuing because of an act or omission by the landlord that constitutes a failure by the landlord to carry out its obligation of maintenance and repair. This means that if a landlord knows, or ought to know, about the defect, the duty to take reasonable care will arise, even if the landlord has not received formal notice of the defect.
In this case, Bolsover District Council had inspected the property in both the year before the incident by way of a general inspection as well as earlier that same year for health and safety purposes, although little evidence was presented to the Court as to the results of those inspections.
The Court of Appeal gave judgment agreeing with the District Court that, in this instance, whilst the extent of the inspections carried out by the Council was not clear to the Court, applying some lateral pressure to the cover would have revealed the existence of the defect and accordingly the landlord either will have known about it, or ought to have known about it, on a properly carried out inspection. As a result, the landlord’s duty under the Act applied and the landlord was held to be in breach of its duty.
In practical terms, whilst a landlord is not required to regularly inspect premises for which it has an obligation to maintain and repair (or a right to enter for such purposes), it does need to be mindful that this duty can easily arise and always act with reasonable care.
Should you have any queries regarding landlord and tenant matters, please do not hesitate to contact Charlotte Mackenzie in our Commercial Property team on tel: 01892 515022 or by email at firstname.lastname@example.org