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Call of the Week-Responsibility for repairs

Call of the week
Landlord Advice
Written by Landlord Advice

The UK has been battered by some Storm Dennis this week, with many parts of the country experiencing incredibly strong winds.

One RLA member gave our advice team a call this week, because heavy rainfall had meant that several things needed repairing at his rental property.

He had several properties in his portfolio, and his query came down to how to respond to these repair requests and where the responsibility lies for sorting out the repair works; himself or his tenant.

Gutters blocked by leaves

The first part of the query that landlord had was about the gutters at a terraced property the landlord owned, which had been blocked by leaves and debris and the excess rainwater was overflowing.

The responsibility for this is laid out in section 11 (1) (a) of The Landlord and Tenant Act 1985 which states;

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

This puts the responsibility of the gutters being maintained squarely at the landlord’s door.

Tenant-like manner

The question was raised of the tenant’s responsibility to live in a tenant-like manner, which although could be construed to include cleaning out gutters, it is rarely advisable. Acting in a tenant-like manner is constrained to carrying out normal works that are within reason. Should a tenant not have the equipment to carry out the work safely e.g. ladder with good support, then it may be considered unreasonable to ask. In any case, the landlord is obliged by the law to carry out this kind of work regardless.

There is also a risk that the landlord’s insurance may be invalidated if basic maintenance work like this was not done. In these circumstances, it is always best to err on the side of caution and make sure the works are done and you have a record of them being done. Sometimes it is better to take control!

Leaky roof in purpose built block of flats

The member then raised a second query relating to a flat the member owned on the top floor in a purpose-built block. The block had a flat roof and the water hadn’t drained away and was beginning to leak through to the member’s property. We advised that the external structure of the building was the responsibility of the freeholder through their management company and advised the member to report it to their management company.

Advice team leader, Maria Sheldon, had this to say “Heavy rainfall often exposes faults with leaks and drainage and landlords should take the opportunity when bad weather comes to inspect their properties where possible, as it may reveal some defects that wouldn’t otherwise get picked up and may lead to such faults being found earlier. These checks should form part of a comprehensive plan for maintenance of the premises.”

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3 Comments

  • If a landlord is having to ask for advice on who is responsible for a leaking roof and gutters I would suggest he is in the wrong business !!!!!

  • One cannot choose when Sections 11 to 14 of the 1985 Act should apply.

    Cleaning of gutters – If, in the tenancy contract, the landlord has agreed to clean gutters (and/or windows) then so be it. But otherwise, is cleaning a “repair” to fall under S.11? It is generally accepted that cleaning of windows is a function of the “tenant like manner” and should be no different therefore for the cleaning of gutters. Of course, no reasonable landlord would expect or want their tenant to be climbing ladders to clean gutters or windows. Not even the landlord should be doing that. One would expect the services of gutter/window cleaners to be called upon and this should be the same whether you own your home or rent it.

    Flat Roof to Top Flat in Block of Flats – When a tenant of a long lease (i.e. a leaseholder) grants a short lease (i.e. 7 or less years, such as an AST) to their own tenant (a sub-tenant), that leaseholder becomes the immediate landlord of the leasehold flat they have chosen to let.

    It follows that the leaseholder, now a landlord, takes on and must accept the consequences of the S.11 repairing obligation. Indeed that obligation is implied into the AST whether the property concerned is a house or flat. A landlord takes on that obligation in return for monthly rent of course.

    If a flat roof (this could be the entire roof of the flat being let, or just a dormer roof or perhaps just a bay window roof) forms part of the “structure and exterior of the dwelling-house” they are letting then, despite that roof also being part of a building containing other “dwelling-houses”, nevertheless, Sections 11 to 14 of the 1985 Act make no exceptions save for the caveat provided by S.11(1B) and any mitigating circumstances accepted under S.11(3A) or by a court order under S.12(2). Indeed, Sections 11(1A), 11(1B) and 11(3A) were inserted as amendments to “capture” those “dwelling houses” that are flats.

    Whilst it remains true that the contractual repairing obligation for a flat roof to a block would remain within the leasehold scheme for the block, a leaseholder subsequently introducing the S.11 repairing obligation in return for rent has effectively introduced a dual repairing obligation. I would suggest that the dual repairing obligation should be resolved to favour the leasehold scheme supported primarily by S.42 of the 1987 Act and S.19/20 of the 1985 Act – the building’s service charge fund is a trust fund and costs charged to that fund must be necessary, reasonably incurred and reasonable in cost. If a leaseholder has subsequently decided to take on the S.11 obligation to repair the flat roof in return for rent then that is what they should do. Consequently, it cannot be said that it would be necessary and reasonable for that repair to be carried out under the leasehold scheme at the cost of a trust fund. Furthermore, the immediate beneficiary of such a repair is the occupying tenant (the sub-tenant) who is not a party to the leasehold scheme.

    There is case law that confirms that the S.11 repairing obligations should not be constrictively construed to just demised premises (i.e. just the inside of a leasehold flat) but to the physical structure of the “dwelling-house” being let and that flat roofs, walls and windows form part of the physical “structure and exterior” of a “dwelling-house”. A court must, of course, take each case given its own merits.

    Looking at the situation now from the occupying tenant’s point of view, at the start of their tenancy they must be given the government’s “How to Rent” guide in which it confirms that their landlord is responsible for repairs and this is reiterated in publications from Shelter Legal and in the Private Rented Sector Code of Practice. The tenant therefore pays their rent on the clear understanding that it includes repairs to be reported to and carried out by their landlord (the leaseholder of the flat). When the tenant then reports a roof leak they do not expect to hear from their landlord that the obligation has been passed up the chain to be dealt with under the leasehold scheme, especially when arrangements for the repair may be delayed due to the “Section 20” requirements to consult, or insufficient service charge funds due to arrears, or other legal issues occurring within the leasehold scheme. The occupying tenant is not a party of the leasehold scheme and should not have to suffer delays due to the complexities of such a scheme. They have reported a roof leak to their landlord and expect their landlord to carry out a repair without any excuse or undue delay.

    The S.11 repairing obligations also include the “estate” or “interest” and, with blocks of flats, “interest” is a reference to the common parts through which the leaseholder, as a landlord, has granted their tenant a right-of way through the block to access and egress the flat being let. In other words, the leaseholder, as a landlord, is also responsible to repair the right of way they have granted…so you may want to consider excluding lifts from that right of way!

    I know my comments are controversial and I’ve been saying all this for a long time now, but I am yet to receive any legal clarification to the contrary. I’m not saying this is how it should be but how the law appears to be currently. Perhaps this area of law is ripe for change as well as the leasehold system?

    • wrong on so many levels.
      communal roofs are outside the control of the landlord and there is a clause in the act about this.

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