How to manage liability for repairs in private rented properties

Faye Schneider – Principal Associate overseeing the Landlord and Tenant Team at DAS Law – discusses how best to manage repairs in a private rented property.

In my experience, disrepair claims are often used as a tactic or reason to defend a possession claim or make a separate claim against a landlord.

The cause of the disrepair is often not obvious without expert evidence or further investigation. Similarly, determining who is liable to repair the damage is often unclear.

Who is liable for repairs?

To determine who is liable to repair a property let to a tenant through an assured shorthold tenancy (AST), the terms of the AST should be considered together with the relevant legislation (see below).  Most modern tenancy agreements impose contractual obligations on the landlord and the tenant to repair different parts of a property. 

However, if there are no contractual obligations stated (any in any event), Section 11 of the Landlord and Tenant Act 1985 imposes statutory obligations on the landlord to keep the property in repair.

That means that the landlord would be required to repair the following (in summary):

• the structure and exterior of the property;
• the installations at the property;
• basins sinks and sanitary conveniences;
• the heating and water heating at the property.

More recently, the Homes (Fitness for Habitation) Act 2018, which came into force on 20 March 2019, implies statutory obligations that certain tenancies – including those granted for seven years or less – are fit for habitation. It also implies statutory obligations to allow landlords access to inspect their properties.

What is the agent's role when it comes to repairs?

Depending on the management service provided between the agent and landlord, often agents will act for landlords; so it will be the agent’s job to protect the landlord’s position and comply with any obligations that rest with the landlord throughout the tenant’s occupation. 

My best advice to agents is to produce and keep accurate records of the state and condition of the property at the outset of the tenancy and throughout the tenant’s occupation, and to retain all communications with the tenants.

What records should agents keep?

Agents should make sure that notes are taken of meetings and telephone calls with tenants and any related parties.  They should also keep all email correspondence, letters, and any reports about the maintenance or damage at the property along with photographic evidence.

Often agents will have electronic logs of the communications with tenants, especially if using lettings software such as Goodlord; which is great evidence of how any disrepair has been dealt with.

Those records should be kept up to date, be accessible to others within the organisation (in case someone leaves the business but within GDPR legislation), and most importantly, be easy to read. If a disrepair defence to a claim is raised by a tenant, it's likely that the agent’s records will form the basis of the landlord’s case.

Therefore, the agent will likely need to share an accurate audit trail of all communications together with any suspected, alleged, or actual damage to the property - including written records and photographs of the disrepair or damage - during the claim, and it may be relied on as evidence before the court.  Agents should be mindful of this. Moreover, they should be mindful with the language that they use and avoid saying anything to anyone which may later influence/prejudice a landlord’s claim.

If you have any problems in relation to the issues raised in this blogpost, you should get expert legal advice.

Disclaimer: This information is for general guidance regarding rights and responsibilities and is not formal legal advice as no lawyer-client relationship has been created. Note that the information was accurate at the time of publication but laws may have since changed.