Gaining Access to the Property for Repairs and Maintenance
Landlord repair obligations are implied into all tenancies of less than 7 years that were entered into after 24th October 1961. Under s11 of Landlord and Tenant Act 1985 (repairing obligations in short leases) these obligations cannot be excluded from any residential tenancy and if there is an express term in the tenancy agreement to repair (but it falls short of s11) then the whole of s11 will be implied into the agreement.
Landlords should always have a repairs procedure in place for tenants to follow when repairs are required and whether informed verbally or in writing, both parties should keep a record of all problems reported. Repair forms can also be filled in and then passed over for action and there should also be an emergency procedure in place to follow if an agent is not used, for example, the provision of a list of contractors names and numbers. Tenants should never be left with no-one to contact.
The Association of Independent Inventory Clerks (AIIC) has outlined the recommended time scales for landlords to respond to a request for repairs. Depending on the problem, some need to be treated more urgently than others:
- Emergency response – gas and water leaks, serious electrical faults;
- 24 Hour response – heating and water systems and other non life threatening electrical problems eg broken windows if not caused by tenant negligence;
- 72 Hour response – kitchen appliances and other items that affect the daily life of a tenant;
- Less urgent responses – broken lawn mowers, a fallen fence panel or a dripping tap.
Properties must be fit to rent before and during a tenancy so in addition to repairs, the properties must be kept gas safe, electrically safe, and fire and carbon monoxide safe.
ACCESS TO THE PROPERTY
In order to out their repairing obligations landlords obviously have to be able to enter the premises. They can’t just turn up as and when they like and under s11 (ss6) of the same Act there is a process regarding access that they must follow This is where a term is implied into the tenancy agreement that landlords with repairing responsibilities under this section (or people authorised by them) have the right to access the property for the purpose of viewing its condition and state of repair.
This section does not extend to actually carrying out the repairs, because the law states that the landlord must do the repair, so it is implied he or she has the right to enter to do it.
So landlords wishing to carry out repairs do not have the right to turn up unannounced to check on a property or tenant. It must be agreed mutually beforehand if they wish to enter for a specific purpose, it must be at a reasonable time and after giving the tenant not less than 24 hours notice in writing.
Note: It has been held that breach of the repairing covenants can also be considered to be breach of the covenant of quiet enjoyment.
If the landlord or the contractors attempt to enter without permission the tenant could launch a claim for trespass as they have the right over the premises just as an owner-occupier does. Therefore landlords should be wary about entering the property when the tenant is not there. Where a tenant has given permission, but has advised they will not be at the property themselves, it is recommended that landlords/agents are best accompanied by a witness.
FAILURE TO REPAIR
If landlords fail to meet their obligations then the tenant can take civil action in the County Court, claiming compensation for damage and inconvenience resulting from the breach and asking their local authority to carry out an inspection of the property under the Housing Act 2004, specifically the Housing Health and Safety Ratings System.
Where there has been a breach, but the payment of compensation may not be sufficient remedy, s17 of the Landlord and Tenant Act 1985 requires specific performance which means that the County Court can make an injunction requiring the landlord to fulfil the express or implied repairing terms of the tenancy agreement. If the landlord fails to carry out the works required by the court order, the landlord, (or his agent), can in very extreme situations be committed to prison for contempt. The County Court can alternatively direct that the repairs be undertaken by, or on behalf of, the tenant at the landlord’s expense.
Damages (compensation) can still be claimed even if the works have been carried out by the time the case reaches court.