Repairs, Maintenance and Fitness for Habitation

Occupation contracts

Under section 91, Renting Homes (Wales) Act 2016 (the Act), the landlord of a fixed term made for less than seven years or a periodic standard contract must ensure that the dwelling is fit for human habitation at the start of the contract and its duration.

Section 92 of the Act contains the repairing obligations of a landlord.

The fitness and repairing rules below apply to all occupation contracts, including converted contracts.

Fitness for human habitation

To determine if a dwelling is fit for human habitation, you must have regard for prescribed matters and circumstances.

The Renting Homes (Fitness for Human Habitation) (Wales) Regulations 2022 are the regulations prescribing those matters.

If the dwelling forms part only of a building (e.g. room in a house), the fitness standard also applies to the structure and exterior of the building and the common parts.

In determining whether a dwelling is fit for human habitation, regard must be had to the presence or occurrence, or the likely presence or occurrence, of the matters and circumstances listed in the rules. The list doesn't say much other than just being a list, and for the complete list, see the schedule here. Some more common matters and circumstances are shown below (not an exhaustive list). The list is taken from the hazards found in the Housing Health and Safety Rating System made by the Housing Act 2004 (see that section).

In the model occupation contract, there is a supplementary term which provides the contract holder does not have to pay rent if the dwelling is not fit for human habitation. See later in the written statement section about supplementary terms.

Damp, mites and mould or fungal growth

1. Exposure to house dust mites, damp, mould or fungal growths.

Cold

2. Exposure to excessively low temperatures.

Crowding and space

11. A lack of adequate space for living and sleeping.

Entry by intruders

12. Difficulties in keeping the dwelling secure against unauthorised entry.

Domestic hygiene, pests and refuse

15.—

(1) Poor design, layout or construction, so the dwelling cannot readily be kept clean.

(2) Exposure to pests.

(3) An inadequate provision for the hygienic storage and disposal of household waste.

Falls associated with baths etc.

19. Falls associated with toilets, baths, showers or other washing facilities.

Falling on surfaces

20. Falling on a surface.

Falling on stairs etc.

21. Falling on stairs, steps or ramps.

Falling between surfaces

22. Falling from one surface to another (including falling from a height).

Electrical hazards

23. Exposure to electricity.

Fire

24. Exposure to uncontrolled fire and associated smoke.

Exclusions to the fitness standards

There is no liability on a landlord regarding a dwelling that the landlord cannot make fit for human habitation at a reasonable expense (section 95(1)).

There is no liability on the landlord if the dwelling is unfit for human habitation wholly or mainly because of an act or omission (including an act or omission amounting to lack of care) of the contract-holder or a permitted occupier of the dwelling (section 96(1)).

See later for further exclusions that jointly apply to the fitness standard and repairing obligations.

Smoke and CO alarms and electrical reports

The fitness regulations also require CO detectors, mains interlinked smoke alarms and electrical inspection reports within 12 months from the start of the Act (for existing tenancies which are converted). Please see the relevant section for specific details.

Repairing obligations

Section 92 of the Act provides repairing obligations for a standard occupation contract for less than seven years.

The responsibilities are similar to those before the Act (section 11 Landlord and Tenant Act 1985).

The landlord must-

• keep in repair the structure and exterior of the dwelling (including drains, gutters and external pipes), and
• Keep the service installations (an installation for the supply of water, gas or electricity, sanitation, space heating, or heating water) in the dwelling in repair and proper working order.

If the dwelling forms part only of a building, the landlord must—

• keep in repair the structure and exterior of any other part of the building (including drains, gutters and external pipes) in which the landlord has an estate or interest, and
• keep in repair and proper working order a service installation which directly or indirectly serves the dwelling and which either-
  • forms part of any part of the building in which the landlord has an estate or interest, or
  • is owned by the landlord or is under the landlord's control.

The standard of repair required is reasonable regarding the age and character of the dwelling and the period the dwelling is likely to be available for occupation as a home.

The structure and exterior of the property include physical exterior walls, windows and doors. Historic cases under section 11 Landlord and Tenant Act 1985 have decided that the obligation does not cover paths to access the property and fences. It is not yet clear how these decisions will shape the rules for occupation contracts.

Further, a landlord's obligation not only extends to parts they may physically own but also may include parts where there is a right of way. For example, suppose a landlord owns a flat within a block on a long lease and has the right of way along the hallway leading to the front door. In that case, the landlord will have a duty to repair the hallway even though they only have the right of way and do not own it (the freeholder in this example will own it). They may have to engage with the freeholder to get the repair done, but section 98 of the Renting Homes (Wales) Act 2016 recognises the landlord's limited rights where he does not control the common parts.

As a general rule, the building and its immediate surroundings should withstand typical weather conditions and everyday use by occupiers and visitors.

Exclusions to repairing obligations

The landlord is not obliged to carry out works or repairs if the disrepair is wholly or mainly attributable to a lack of care by the contract-holder or a permitted occupier (section 96(2)).

Regarding a repair about part only of a building (not being the actual dwelling (see section 95(5)), the landlord does not have to carry out works or repairs unless the disrepair or failure to keep in proper working order affects the contract-holder's enjoyment of-

• the dwelling, or
• the common parts the contract-holder is entitled to use under the occupation contract.

Exclusions applying to both the fitness standard and repairing obligations

The fitness rules and repairing responsibilities to the dwelling do not require the landlord-

• to keep in repair anything which the contract-holder is entitled to remove from the dwelling, or
• to rebuild or reinstate the dwelling or any part of it in the case of destruction or damage by fire, storm, flood or other inevitable accident.

If the dwelling forms part only of a building, and to comply with the fitness or repairing obligations, the landlord needs to carry out works or repairs in another part of the building; the landlord is not liable for failing to comply if they do not have sufficient rights over that other part to be able to carry out the works or repairs and was unable to obtain such rights after making a reasonable effort to do so.

Further obligations applying to fitness and repairing

To comply with the landlord's obligations under fitness or repairing, the landlord must make good any damage caused by works and repairs.

The landlord may not impose any obligation on the contract-holder if they enforce or rely on the landlord's obligations under fitness or repairing.

When the duty to comply with fitness and repair apply

The dwelling must be fit for human habitation and in repair at the start of the occupation contract before the contract-holder moves in.

However, during the contract, the landlord's obligations do not arise until the landlord (or, in the case of joint landlords, any one of them) becomes aware that works or repairs are necessary. This might be from an inspection, notice by the contract-holder, works notified on an electrical report or notice by someone like the local authority (section 97(1)).

Furthermore, the landlord complies with the obligations if the landlord carries out the necessary works or repairs within a reasonable time after the landlord becomes aware that they are required. This means there is no breach during the reasonable period whilst the works are being arranged and carried out (section 97(2)).

Suppose the landlord (the "old landlord") transfers the dwelling to another person (the "new landlord"), and the old landlord is aware before the date of the transfer that works or repairs are necessary. In that case, the new landlord is treated as becoming aware on the date of transfer but not before (section 97(3)).

This general rule does not apply where the defect is not within the demise, such as a shared roof or shared path. A landlord is advised to regularly inspect these parts to check for the need to repair.

It might be possible for a term in an agreement to require the occupier to provide notice where the defect is not within the demise.

Right of access

After giving at least 24 hours' notice in writing, the landlord may enter the dwelling at any reasonable time for:

• inspecting its condition and state of repair, or
• carrying out works or repairs required to comply with the fitness or repairing obligations.

It seems the right to all reasonable facilities for executing therein any repairs that the landlord is entitled to execute from s.16 Housing Act 1988 has been lost. It may be possible to make this an additional term of the written statement.

Although legislation gives a right to enter (after given notice), this does not mean the landlord is entitled to enter the property, irrespective of whether the occupier asks the landlord not to. However, if the appointment time is inconvenient, the occupier will be expected to consent to an appointment at another time.

If the occupier refuses to allow the landlord access, the occupier will breach their agreement. In some circumstances (for example, if the property is clearly in disrepair), this may entitle the landlord to apply for an order for possession.

Suppose the occupier's failure to allow the landlord access to do the works results in further deterioration or damage to the property. In that case, the occupier may be liable to the landlord (entitling the landlord, for example, to deduct the additional costs incurred from the deposit).

Generally, landlords and agents should be wary about entering the property when the occupier is not there. Where an occupier has given permission but has advised they will not be at the property themselves, consideration should be given to taking a witness.

Breach of obligations and who can claim against a landlord?

The property should be reasonably repaired internally and externally and fit for human habitation. There should be no dampness, either rising or penetrating damp, from the outside. Condensation may result from the occupier's behaviour, but it may also have implications for the landlord if the ventilation is inadequate or some structural problem is causing it. An investigation of the cause will be needed to decide responsibility.

Statutory and common law requires that there should be no unacceptable risk to the occupiers' or visitors' health or safety.

Remember that if the occupier or visitors have an accident or suffer injury due to the property's poor condition (for example, a fall caused by a broken handrail or respiratory diseases caused by damp conditions), the landlord may be liable to them for damages for personal injury.

The contract-holder may claim for a breach of the fitness or repairing obligations. Furthermore, a permitted occupier who suffers personal injury or loss of or damage to personal property due to the landlord failing to comply may enforce in their own right by bringing proceedings regarding the injury, loss or damage.

But a permitted occupier who is a lodger or sub-holder may do so only if the lodger is allowed to live in the dwelling or the sub-occupation contract is made by the occupation contract.

The occupier can take action in the County Court for breaches of the landlord's repairing obligation, which is a civil action. The occupiers can claim compensation for damage and inconvenience resulting from the breach.

The landlord should receive notice of this in advance of any claim, as occupiers are now obliged to comply with the 'Pre-action Protocol for Housing Disrepair'. This protocol provides that occupiers must inform their landlord in writing (an 'early notification letter' followed by a 'letter of claim') of all relevant matters before issuing legal proceedings. The protocol gives full details of the information and specimen letters. If the occupier does not comply with the protocol, the landlord can ask the court to stay the claim until the protocol's provisions have been complied with. You can download a copy of the protocol from the Justice website. The protocol does not apply if the tenant is counterclaiming against a landlord's claim (for rent arrears, for example).

Section 100 of the Renting Homes (Wales) Act 2016 allows the court to order 'specific performance' (saying the landlord will have to repair) where there has been a breach. The payment of compensation may not be a sufficient remedy.

This means the County Court can make an order requiring the landlord to fulfil the agreement's express or implied repairing terms. The County Court can make an injunction requiring the landlord to do repair work that may or may not be within the contract terms. If the landlord fails to carry out the works required by the court order, the landlord, or his agent, can be imprisoned for contempt in extreme situations. The County Court can alternatively direct that the occupier undertake repairs at the landlord's expense.

Damages (compensation) can still be claimed even if the works have been carried out when the case reaches court.

In practice, it is rare for these extreme measures to be used. However, it is vital to be aware that these penalties exist, and you should make every care to respond promptly to repairing obligations when they arise. After all, it protects any financial investment, and if the property is adequately insured, some work may be covered by the insurance policy.

Defective Premises Act 1972

Section 4 of the Defective Premises Act 1972 places a duty of care on the landlord concerning any person who might be affected by a defect, 'to take such care as is reasonable in all the circumstances to see that they are reasonably safe from personal injury or damage to their property caused by a relevant defect'.

This is civil redress. A defect is relevant if the landlord knew about it or should have known about it - the fact that a defect has not been reported or there has been a failure to inspect (e.g. rotten floorboards or joists) does not remove liability. For this reason, landlords or agents must conduct regular checks on the property and be suitably insured.

In this case, the premises include the whole of the letting - i.e., gardens, patios, walls, etc. - and can be applied to the communal areas of estates or multi-occupancy buildings, including lifts, rubbish chutes, and stairs and corridors. Section 4 provides occupiers or other affected persons the right to seek compensation for personal injury or damage to property.

Occupiers' Duty of Care

Section 2 of the Occupiers' Liability Act 1957 provides that the occupier of a property has a duty of care to all visitors who come onto their premises. This applies to landlords where they are the legal occupier of some parts of their rented stock, e.g. shared-use areas such as lifts, staircases and entrance lobbies – even grounds and car parks.

The duty means taking such care as would be reasonable in all circumstances to see that the visitor is reasonably safe in using the premises for its purpose. The landlord is liable for injury caused to a visitor due to defects in the part of the building occupied by the landlord.

Other tenancies, not occupation contracts

The repairing obligations of sections 11 - 17 Landlord and Tenant Act 1985 imply terms for all tenancies of less than seven years, which are not occupation contracts.

The legislation is almost identical to that described above, except the fitness for human habitation doesn't apply, including:

• repairing obligations (structure, exterior and service installations etc.)
• right of access
• breach of repairing obligation

The defective premises and occupiers' duty of care also applies to all tenancies (including occupation contracts).

Contracts with contractors

Before engaging a contractor to supply services, you should consider the following:

Is the contractor competent? This is partly tested by practice, but the contractor must be qualified in certain situations. The engineer must be Gas Safe Registered for gas work, and they must be qualified to the appropriate level for electrical work.

Is the contractor insured? What kind of insurance does the contractor hold, and is it current? Is the public liability element sufficient for the job or the site situation? The date of the renewal should be noted and checked annually.

Is the contractor safe? The landlord must address safety issues with the contractor before going on-site. In most cases, this will be straightforward. However, it becomes more complex if the job involves working from heights or the possible presence of asbestos. Where the contractor is a firm with five or more employees, the contractor must have a written and up-to-date Health and Safety Policy. If the property is occupied, the landlord must disclose anything around the occupancy that may present any significant risks or issues to the contractor or team.

Any contractor should ensure they carry out their risk assessment before undertaking any work. A landlord or letting agent can breach the Construction (Design and Management) Regulations 2015. You can find further details on the Health and Safety Executive website.