Landlord Liability for defective premises judgment

A recent Northern Ireland Court of Appeal judgment, Argue V Northern Ireland Housing Executive Neutral [2016] NICA 18 (5 April 2016)  considers the provisions of the Defective Premises (Landlord's Liability) Act (Northern Ireland) 2001.

Facts of the case

A number of factual findings were not in dispute, namely:

• It is likely that the defect had been the product of steady deterioration over time, rather than instantaneous failure.
• The tenant had not established that the area in question was the result of a repair at some stage in the history of the stair. 
• The defect was covered by carpet and it was unlikely that the defect would have been apparent during an inspection.
• It would not be reasonable to have expected the landlord to have carried out periodic inspections of the staircase involving removal of the carpet.
• It was not unreasonable for the landlord to rely on the tenants, who used the staircase every day, to report problems.

The landlord’s repairing responsibilities were summarised by the court as follows:

• The landlord had, and has, a duty to maintain and repair the staircase. 
• The landlord had a duty to permit access to the dwelling for the purpose of viewing its condition and carrying out any works.  The landlord therefore had a right and an obligation to enter the premises to carry out repairs to the defect in question.
• The landlord was not under a contractual duty to carry out a repair until a reasonable time had elapsed after the District Manager had been given written and specific notice by or on behalf of the tenant of the need of such works.

Landlord’s duties under the Defective Premises Act 2001

The tenant argued that, where the landlord has a right to enter premises to repair a defect, he is under a duty in respect of that defect, notwithstanding that he neither knew about nor reasonably could have known about it pursuant to section 2 of the Defective Premises (Landlords Liability ) Act (Northern Ireland) 2001.

She contended that the intention of the 2001 Act was to provide a remedy for innocent victims injured on defective premises and to provide for liability against landlords in nuisance when there was a right to enter for the purposes of repair. The right to enter and inspect for repairs created such an obligation on the landlord and was to preclude landlords from asserting ignorance of defects

Court rejects argument that landlord is liable

The court rejected that argument. After considering in detail the provisions of section 1 and 2 of the 2001 Act, it held that “it is difficult to comprehend why Parliament would wish to place a heavier burden on a landlord who has a right to enter in order to repair than the landlord who has an obligation to repair”.

The court agreed that the Act rendered 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 “.

The court rejected any suggestion that there should be “strict liability” where the landlord has a right to enter a property to carry out repair.

The court accepted the view in Lafferty v Newark & Sherwood District Council [2016] EWHC 320 (QB)  that “…liability may be established …“either in circumstances where a landlord's inspection(s) are negligently performed, or where the landlord fails to carry out proper inspections because he abstains from implementing a reasonable system for performing them. I am not intending to set out exhaustive categories, but these must be the paradigm instances.”

Learning points for advisers

Advisers should be aware that, in addition to the repair obligations set out in the tenancy agreement, landlords must comply with the requirements of the Defective Premises (Northern Ireland) Order 1975 and the Defective Premises (Landlord’s Liability) Act 2001.

These include:

• The duty to build premises properly and if repairing to repair properly
• The duty to take reasonable care to ensure that tenants and visitors are reasonably safe from personal injury or damage to their property
• The duty applies if the landlord knew or ought to have known of the defect
• The duty does not apply where the defect has arisen as a result of a breach by the tenant of his obligations under the tenancy agreement
• The fact that the landlord has a right to enter to carry out repairs does not impose a further obligation on him that s/he knew or should have known about a particular defect.