Who put that hole there? Whether landlords have a statutory duty to inspect for defects 

The Court of Appeal has provided clarification as to whether the Defective Premises Act 1972 (the “Act”) confers an obligation on landlords to carry out routine inspections of tenanted properties.

Summary

The Court held that there is no general statutory duty to carry out routine inspections. However, the facts may well give rise to a duty to inspect if, for example, the landlord is aware of any particular risk factors. If a defect arises, the relevant question is whether the landlord ought, in all the circumstances, to have known about it.

If inspections are in fact carried out, the landlord will be under a duty to exercise reasonable care in carrying out the inspections and must ensure that it follows up on any risks and remedies any defects identified.

The statutory duty

Section 4 of the Act imposes a duty on landlords to take reasonable care to ensure that anybody who might reasonably be affected by defects in tenanted premises are reasonably safe from personal injury or from damage to their property caused by such defects.

The duty arises where the landlord has:

(i) an obligation to maintain or repair the premises; or

(ii) an express or implied right to enter the premises to carry out maintenance or repair, such as under a Jervis v Harris clause. In this case, no duty will be owed to tenants who were liable themselves to remedy the defect, but can still be owed to third parties.

The duty arises when the landlord first knows, or ought in the all the circumstances to have known, about the defect. Therefore, there is no requirement to have actual knowledge of the defect.

The tenant fell through a manhole

The case of Rogerson v Bolsover District Council [2019] EWZA Civ 226 concerned a council tenant who stepped backwards onto an inspection cover in her front garden whilst mowing the lawn. The inspection cover gave way and she fell into the void below, resulting in injury. The landlord had an obligation under the lease to maintain the structure and exterior of the property, although the cover itself was owned by Severn Trent Water.

The landlord had carried out two recent inspections of the property, but was able to adduce only scant evidence as to what the inspections had involved.

The tenant’s appointed expert, a chartered civil engineer, gave evidence that the manhole cover had been in place for approximately 40 to 60 years and that the most logical explanation for the accident was that the support for the inspection cover had been corroded by rainwater over time and had consequently given way under the claimant’s weight. The landlord did not put forward any expert evidence to challenge the tenant’s evidence.

The trial judge accepted that the manhole cover and void below must have been in an unsafe state for a long time prior to the accident. The judge accepted the expert’s assessment that a simple pressure test, i.e. cautiously applying pressure by foot to the inspection cover to see if there was any give, would have brought the defect to light, and concluded that the inspections had been inadequate.

Whether the landlord had a duty to inspect

The Court of Appeal confirmed that the Act does not impose a generic duty on landlords to inspect tenanted properties. However, a duty to inspect may arise as a result of the circumstances. One of the factors that will be relevant is whether there are known risks with the property.

However, where inspections are in fact carried out, there is a duty to carry these out with reasonable care.

The two inspection covers in the garden were large and the danger they posed, especially to children, would have been obvious. The trial judge was entitled to find that the defect would have been easily discoverable by applying some lateral pressure to the inspection cover and this had shifted the evidential burden to the landlord. The scant documentation put forward by the landlord did not demonstrate that the inspections had been carried out with sufficient care.

Therefore, the Court of Appeal confirmed that the landlord, having carried out two inspections, ought to have known about and remedied the defect and therefore was liable to the tenant under the Act for the damage suffered. It did not matter that the inspection cover did not belong to landlord – the landlord could have discharged its duty by requiring the water board to inspect and remedy the defect.

What inspections should involve

The Court confirmed that the steps that a landlord should take in carrying out inspections will vary according to the facts. In some cases, only a visual inspection will be required in order to discharge the duty of care, but in other circumstances something more will be required. What is required will depend on:

• how apparent or foreseeable the defect is;

• the nature and severity of the risk posed;

• any applicable safety regulations; and

• what might be involved in carrying out more extensive investigations.

Advice for landlords

Whilst this case has confirmed that there is no standalone duty to inspect, a complete failure to carry out any inspections is likely to lead to an inference that the landlord ought to have known about a defect that would have been apparent on inspection, unless perhaps the tenant has assumed full responsibility for repair and maintenance of the premises and the landlord is confident, with good reason, that the tenant is complying carefully with this responsibility.

If inspections are carried out, landlords should ensure that these are carried out with reasonable care. Detailed notes as to the scope and outcome of the inspection should be taken, identifying any potential risks at the property. This will influence the action that a landlord will be expected to take as the landlord will then be on notice that a defect may develop and / or that there is risk of harm being caused. Particular care should be taken where vulnerable occupiers or sensitive property are likely to be found on the premises. Finally, the landlord should ensure that any issues found on inspection are carefully monitored or remedied, as appropriate.