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.