James Driscoll considers whether a landlord can be liable for latent defects
Key points
- A landlord’s liabilities for disrepair may be wider in tort than in contract
- But there is no strict liability
Robina Lafferty has been a tenant of the council since October 1998. One day, as she was hanging out her laundry in the garden, a hole suddenly appeared in the ground. She fell into it and suffered injuries (which fortunately were not particularly serious).
How did this hole suddenly appear? Was it caused by her landlord in breach of its obligations to repair and maintain? And if it was, should Mrs Lafferty be compensated for her injuries?
Her county court claim for damages based on section 4 of the Defective Premises Act 1972 (the “1972 Act”) was dismissed. She appealed to the High Court (see: Lafferty v Newark and Sherwood District Council [2016] EWHC 320 QB: [2016] PLSCS 84.)
Under an express covenant in her tenancy agreement the landlord agreed to keep in repair and proper working order the installations for the supply of water, gas and other facilities (as well as the structure and exterior of the building).
Expert evidence suggested that water had seeped out of an underground pipe in the garden which may have been damaged at some stage. This water seepage saturated the soil. A void was created. Hence the eventual emergence of the hole.
Landlord’s liabilities
It is well established that a landlord’s contractual liability only arises where the landlord is aware of the disrepair (see: O’Brien v Robinson [1973] UKHL 1). This is the position even though the defect is latent, or hidden from view (the “notice rule”). One of the aims of the 1972 Act was to allow a third party to seek compensation where a landlord was in breach of its obligations. Another aim was to extend a landlord’s liabilities to cases where it ought to have been aware of a relevant defect.
Mrs Lafferty sued in tort alleging breaches of the landlord’s duties in section 4 of the 1972 Act (presumably because a claim in contract would have failed given the notice rule). Landlords owe duties to occupiers and others if they have to maintain or repair the dwelling (section 4(1)). This applies not only where the landlord is aware of the relevant defect; it also applies where it “ought to have known” (section 4(2)). “Relevant defects” are ones caused by an act of omission on the part of the landlord (section 4(3)). Landlords will also be liable under section 4(4) if they have the right to enter premises to carry out repairs (when they are treated as if they have an obligation to repair).
As the High Court noted, there have been several decisions on the scope of section 4(1):
- In McAuley v Bristol City Council [1992] 1 QB 134; [1995] 2 EGLR 64 the landlord was held to be liable for a defective step in a garden as it had the right to enter it. In that case, the landlord had notice of the disrepair.
- In a later case – Sykes v Harry and another [2001] EWCA Civ 167; [2001] 1 EGLR 53 – it was decided that liability did not require proof that the landlord had actual or constructive notice.
- Then in Alker v Collingwood Housing Association [2007] EWCA Civ 343; [2007] 2 EGLR 43 the court held that section 4(3) did not apply to a condition that was a design fault, rather than one within the landlord’s repairing covenant.
In Mrs Lafferty’s case it appeared to be common ground that while the landlord’s covenant extended to the water pipes, it was unaware of the damaged pipe, or the effects of the water ingress into the soil. In submissions made on her behalf she relied on section 4(4) arguing, in effect, a form of strict liability.
The decision
The High Court rejected this and dismissed her appeal giving several reasons. It began by examining the meaning of section 4(4) which could in principle, it concluded, cover two situations:
- first, where the defect is not covered by section 4(1) because there is no repairing covenant; and
- secondly, where it does fall within section 4(1), liability is excluded by section 4(2) as there is no proof that the landlord knew, or ought to have known, of the defect.
This case fell into the second category. A finding of liability in these circumstances would, concluded the court, be an “uncomfortable outcome” [32] as it would imply that any claimant would find themselves in a better position under section 4(4) than on section 4(1). This is because “all assured tenancies” give the landlord rights to enter the property. As all claimants could rely on section 4(4), there would be no point in relying on section 4(1).
The purpose of section 4(4), reasoned the court, “…is not to create strict liability but to extend …section 4(1) to …defects which are (outside) its scope…” [33] bringing it within the scope of liability under section 4. The court also stated that there must be an inference from the lower court’s findings that even the most careful inspection would not have revealed this defect, which was located some distance beneath the surface of the garden.
The 1972 Act has extended the liability of a landlord for injuries and losses in a way that is broader than the scope of its contractual obligations. However, this latest decision reminds us that there is no strict liability. No doubt Mrs Lafferty will be disappointed that, despite no fault of her own, she has no redress for injuries she suffered in the premises she rents from the district council.
It is of note that Mrs Lafferty did not seek damages for negligence. Perhaps this was because of a limitation period. It is also puzzling that the court referred to her being an assured tenant as most tenants of local authorities are secure tenants and an assured tenancy cannot be granted by a local authority (Housing Act 1988, schedule 1).
James Driscoll is a solicitor and a writer
