Whose windows are these?

As should be well known, when it comes to landlord’s repairing responsibilities, an awful lot depends on the wording of the tenancy agreement. See for example, Welsh v Greenwich LBC (2001) 33 HLR 40 CA line of cases where a tenancy clause committing the landlord to keep the property ‘in good condition’ or ‘fit to live in’ made the landlord liable for condensation mould.

However, as should also be well known, the landlord cannot exclude the repairing obligations implied into tenancy agreements by Section 11 Landlord and Tenant Act 1985. Indeed, s.12 makes that clear:

(1) A covenant or agreement, whether contained in a lease to which section 11 applies or in an agreement collateral to such a lease, is void in so far as it purports—

(a) to exclude or limit the obligations of the lessor or the immunities of the lessee under that section, or

(b) to authorise any forfeiture or impose on the lessee any penalty, disability or obligation in the event of his enforcing or relying upon those obligations or immunities,

unless the inclusion of the provision was authorised by the county court.

So it was with a degree of surprise that I saw the repairs section of the tenants’ handbook of Bedfordshire Pilgrims Housing Association – now, they say, known simply as bpha. (I do love the all lower case. It is so… personal.)

Here it is:

When it comes to repairs and the maintenance of your property, there are some areas for which we are responsible but others that fall into your responsibility as a tenant.

Our responsibility

• Outside walls, outside doors, window sills, window catches, sash windows, frames including
any decorating needed outside but not replacement glass
• Drains, gutters, outside pipes and the roof
• Chimney stacks, Chimneys and flues.
• Footpaths, steps or other access points.
• Boundary walls and fences but not those you share with your neighbours.
• Keeping installations for water, gas, electric, sanitation in working order.
• Wear and tear in communal area’s including lightbulb replacements.
• Repairing fences, walls and gates at the rear of the property that border public highways and
paths

You are responsible for

• Keeping your property well ventilated to prevent the build-up of condensation and damp
• Bath panels, toilet seats and covers, shower hoses, heads and riser rails
• Unblocking toilets, baths and sinks within the property (not including external drains and
(stacks)
• All cleaning, internal decoration (including following a repair) and garden maintenance
• Repairs to internal doors and fixings (including re-hanging and replacement), replacing door handles
• Repairs to any type of letterbox
• Replacing all light bulbs (including starter motors for fluorescent tubes)
• Filling minor cracks in plaster
• Replacing glazing, locks and handles to windows
• Replacing worktops, floors and any other item due to misuse by you, your family or visitors
• Repairing any goods installed by you or accepted by you at the start of your tenancy and making good any damage caused by the failure of such installations (for example washing machines, dishwashers, security lights, cookers, flooring etc be aware that gas cookers must be fitted/removed by a Gas Safe contractor)
• Fittings for gas cookers (bpha will provide a bayonet fitting to the gas supply only)
• Bleeding and ventilating radiators
• Replacement and repair of washing lines (does not include communal lines)
• Replacing lost/stolen keys or keys snapped in locks
• Keeping your smoke/carbon monoxide alarms clean and regularly tested
• Repairing and replacing any fencing/gates/walls shared with a neighbour or not adjoining a public footpath or highway
• Repairing/replacing TV aerials
• Conservatories

Let’s take a couple of items from this list.

bpha (sic) is not responsible for the glass in external windows? And bpha is not responsible for ‘conservatories?

On external windows, it is well established that they form part of the ‘structure and exterior’ for the purposes of s.11(1)(a) LTA 1985. See for example Ball v Plumber (1879) 23 SJ 656, CA (so, well established), or Sheffield City Council v Hazel St Clare Oliver LRX/146/2007 (our report). No distinction is made between the frames and the glass. They are part of both the structure and the exterior.

A moment’s pause for thought would indeed suggest that the glass panes in an external facing window would be part of the exterior of the building, on the basis that they do in fact work to separate the outside and the inside. But this is not enough for bpha (loving that relatable lower case), who think the glass panes are the tenant’s problem.

I can be reasonably categorical in saying that they aren’t. If (in their engagingly lowercased way) bpha think the tenant or their household was responsible for the breaking of the window (and can evidence it), then they can of course recharge the tenant for the cost of the repair. But what they can’t lawfully do is what they have purported to do.

Now, conservatories. I have, shall we say, conceptual difficulties with bpha’s exclusion of responsibility for conservatories, apart from what appears to be an institutional aversion to glass. It is not sustainable as a general exclusion.

If the tenant has had the conservatory added during the course of the tenancy, then the liability will be the tenant’s.

But if either bpha (or predecessor in title), or a previous tenant constructed the conservatory, and the current tenant took from bpha (or predecessor in title) with the conservatory in place, then it is part of the demise, part of the structure or exterior of the dwelling and falls firmly under s.11 LTA 1985. As an example, Smyth v Farnworth, Wigan County Court, 3 September 2009 (December 2009 Legal Action 23) (our note)  saw an award of £5000 in damages for issues including water penetration to a conservatory.

I have no idea if bpha (in their non-threateningly lowercased way) got legal advice on these tenancy terms, or whether when they had received the advice, they ignored it. But they are wrong. And once their tenancies are subject to the Homes (Fitness for Human Habitation) Act 2018 and s.9A LTA 1985 as amended, as of March 2020, they will be doubly wrong. This is regardless of whether their initials are upper case, title case, or lowercase.

About Giles Peaker

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +.
Posted in assured-tenancy, Disrepair, Housing law - All, secure-tenancy.

11 Comments

  1. BPHA (damn, misspelt it) is in good company. For example, should you ever have a free half-hour, amuse yourself by reading Wokingham Borough Council’s tenancy agreement and handbook (howlers on other matters are also freely-available in both). Unless, of course, you have a disliking for modern fiction.

  2. Great article, so grateful for the website and your blogs. not only have your blogs educated me but they have make me keen to learn even more. I was wondering though, Is the rule of thumb that landlord is responsible for anything that existed when the tenancy commenced? I am sure tenants are often told they have to replace/repair things like broken kitchen cupboard and drawer handles.

    • In general the landlord is only responsible for what is in the tenancy agreement and implied into it by s.11 LTA 1985 (and now s.9A LTA 1985). However, it is certainly the case that the new obligation to keep the dwelling fit for human habitation extends beyond the old s.11 responsibilities, so may encompass internal doors to a kitchen if not properly fire resistant, for example. It may be that in a situation where the condition of internal fittings – where installed or passed on by the landlord – could give rise to a risk to health and well being, it would be for the landlord to remedy the defect.

      I know a very good book on the topic.. https://nearlylegal.co.uk/2019/05/misc-talking-about-fitness-new-section-21-notice-and-leasehold-shenanigans/

  3. I haven’t seen it explicitly mentioned anywhere but as most windows are double-glazed is there any legal distinction between the internal and external panes of glass?

    I recently heard of a tenant having an issue with local vandals throwing things at their house and breaking the windows. The landlord would presumably foot the bill on his insurance, though repeat occurrences would possibly raise issues as to why one particularly house was being regularly targeted. At what point could the landlord claim the tenant must be provoking the neighbours in some way? What would a local authority do in such a circumstance?

    But then the issue arises as to who is responsible if an internal pane gets broken without an external pane being involved. Common sense suggests this could not easily happen except through the conduct of the tenant. Without there being a distinction between internally and externally caused damage I can’t see how a landlord would not end up being lumbered unfairly. In practice, of course, I expect a clumsy tenant would have to ensure both panes were broken to claim that a brick was thrown rather than admit it was their own fault so the distinction may be academic except with the most honest of tenants.

    • Never seen it argued. I suppose someone might try it, but I can’t see the distinction hold up. Both panes are constituent parts of the window, which its part of the structure and exterior.

      I have seen the occasional long lease that drew the distinction. In general I saw them because they were unworkable in practice. Eg, freeholder wants to replace the window unit, but can’t without removing the pane demised to the leaseholder.

      Arguing tenant causation needs evidence. It would be a pretty extraordinary case where the landlord could show the tenant had unreasonably provoked others to break the window.

    • “could the landlord claim the tenant must be provoking the neighbours” do you mean for instance if the tenant repeatedly puts a photo of a grinning Piers Morgan in his window?

  4. Regarding the internal pane, first of all the window is a sealed unit providing protection from the exterior, so one could argue that whether internal or external the liability runs with the Council.

    Secondly, with the recent heat wave there have been a number of reports of the heat causing the windows frames and enclosures to expand and contract thus breaking either internal, external or both panes. Each hot day weakens all elements of the window, the window being the separator between internal and external is the responsibility of the Council, HA, Landlord.

    It is great that you highlight this because I wanted to ask you a general question about Housing Associations and Councils passing over their responsibilities to social tenants. Particularly fire regulations, this seems to be common since Grenfell, with some HA’s having gone Health and Safety mad. The result is that they are having way more inspections and passing on the charges to the tenants via the service charge. There are some reports of increases of 50% in service charge for several years running and more proposed.

    I wonder if you could comment on the legality of this, what laws I might research in this respect and any relevant case law. It seems crazy that HA tenants who have a social rent are being made to pay service charges that are increasing year on year to meet the obligations of the HA Landlord. Also noteworthy is that the HA’s are not allowed to increase the rent during the tenancy but when they are renewed they are no longer social rents, which may represent an increase of 40%.

    I do have some sympathy for the HA’s, George Osborne had them cut their rent by 1% a year for 4 years (in 2015), stopped their access to 20% of new build developments whilst at the same time forced them to give their tenants a right to buy after 5 years.

    • I’m afraid I don’t follow. HA social rents by and large do not include service charges. Variable service charges can be challenged in the First Tier Tribunal on reasonableness of expense and whether works/service reasonably required. Challenging fire safety inspections would need a solid basis though.

      HA rent increases on social tenancies are restricted. I don’t get what you mean about ‘renewed’, even fixed term HA social tenancies are renewed as social rent tenancies.

      Oh and the ‘voluntary’ HA right to buy has not gone further than a small pilot. And I very much doubt it will, to be honest.

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