By law, anyone responsible for a property owes a duty of care to people who might visit or use the property. This principle imposes a duty on landlords to protect their tenants from harm. The duty extends to tenants’ friends and family, and even trespassers.
Crucially, the duty applies in situations when a landlord ought to have known of a hazard, not just cases where the landlord has been informed of a defect by their tenant.
This article sets out how a landlord can fulfil this duty, and what the legal consequences are if the duty is breached.
Housing disrepair (law)
Under the Defective Premises Act 1972, landlords must take reasonable steps to protect tenants from being harmed by property defects. Unlike a shop owner’s duty to customers, or a company’s duty to staff and visitors, landlords cannot monitor the condition of the property on a very regular basis.
A landlord must take reasonable care to maintain the property to a reasonable standard. If the landlord fails to meet this standard, and their tenant is injured or becomes sick, the landlord may be liable to pay compensation.
A court of law decides what is “reasonable” by asking:
- What would an average, reasonable landlord do?
- Has the landlord demonstrated this level of reasonable care?
Duty to carry out repairs
Landlords must carry out regular maintenance on their properties. The standard and frequency of the maintenance must meet a reasonable standard.
In practice, that means that certain checks that are required by law must be carried out annually. Other maintenance must also be carried out regularly, as required to ensure the property remains safe. Appliances must be in good working order, carpets and other trip hazards should be checked for wear and tear, and so on.
Repairs must be made in reasonable time. The timeframe will depend on the complexity of the repairs. For example, if a microwave has a fault that could create a fire hazard, it is simple for a landlord to remove or replace the appliance. If major works are required to make a property safe, and the risk of harm is low, then it may be reasonable for there to be a longer delay.
“Unfit to live in”
The Homes (Fitness for Human Habitation) Act 2018, often referred to as the Homes Act, came into force in March 2019, and requires landlords to ensure properties are fit to live in. This Act creates a broader duty of care for landlords beyond making sure that certain specific repairs are made.
The Homes Act means that landlords must ensure their properties are generally safe, secure, warm and dry. The Homes Act sets out a list of specific hazards that would amount to a breach, including:
- Carbon monoxide exposure
- Lead exposure
- Excess cold or heat
- Physical injury (e.g. caused by moving heavy doors)
- Unsafe windows
- Unsafe stairwells
- Insufficient lighting
If a landlord is in breach of the Homes Act, their tenant can take them to court, even if the tenant has not been injured.
Under the Protection from Eviction Act 1977, it is generally illegal for a landlord to enter a property without the tenant’s permission. Even if the landlord gives notice, it is possible that frequent visits (e.g. monthly) may be considered “harassment” by a court if the tenant objects.
These restrictions mean that it is simply not possible for landlords to be aware of all defects to a property. It is therefore a tenant’s responsibility to notify their landlord of defects as they become aware of them.
Tenants should notify landlords promptly about any hazards, before the hazard becomes worse. If there is evidence that the tenant failed to notify the landlord of a defect in a reasonable timeframe, and that failure contributed to the severity of any injuries, it may be harder to claim compensation. Alternatively, the compensation award may be reduced to reflect the degree to which the tenant contributed to their own injury. This is called “contributory negligence”.
Under what circumstances could a tenant make a claim?
A landlord won’t be automatically responsible for every injury sustained by a tenant in the property. Whether a landlord is liable to pay compensation for a tenant’s injury will depend on the facts of the case.
If the landlord failed in their duty of care, and a tenant suffers an injury as a result, a personal injury compensation claim may be possible.
In most circumstances, the tenant will be able to start a claim within three years of the injury or illness. If a child is injured, then a claim could be started at any time before the claimant’s 21st birthday.
Longer-term health conditions
Landlords may be liable if a tenant develops an illness or chronic health condition as a result of their living conditions.
Mould, lead poisoning or carbon monoxide leaks, for example, could all give rise to a claim for compensation in the event a tenant becomes sick as a result.
A landlord will remain liable even after the tenancy ends. In some cases, illnesses and health conditions can take some time to manifest or be diagnosed.
Although these more remote claims can sometimes be harder to prove, if a doctor diagnoses an ex-tenant with a mould-related lung disease, and there exists a history of correspondence from the tenant asking the landlord to deal with a mould issue, a claim has a much better chance of succeeding.
What can tenants claim for?
An injured tenant could pursue a compensation claim for general and special damages.
General damages are awarded for pain, suffering and loss of amenity (PSLA). General damages awards are set by the Judicial College and vary depending on the severity of the injury and the prognosis for recovery.
Special damages can be claimed for any financial losses and expenses incurred as a result of the accident. Examples could include the cost of any medical treatment, loss of earnings, and damage to the tenant’s belongings.
Can tenants claim even if they aren’t injured?
In most cases, including workplace and public settings, a person cannot claim compensation if they have not actually been injured, even if another party’s behaviour was negligent or very dangerous.
However, tenants can still make a claim against their landlord if a property is unfit to live in, even if the defects have not yet caused any injuries. Tenants can take their landlord to court to force them to carry out necessary repairs, or to pay compensation.
In these circumstances, compensation is paid out not for any injury the tenant could have received, but instead for the following:
- Financial loss – Tenants can claim for losses caused by having to deal with defects, such as the cost of having locks replaced if the landlord refuses, or energy bills if the tenant is forced to use space heaters.
- Inconvenience – Tenants can also claim for the general disruption that defects have caused, or for not having full use of the property.
What should landlords do?
The simple answer is that landlords should ensure they take reasonable care to ensure properties are safe, well-maintained and otherwise fit for habitation.
The standard of what is considered to be “reasonable” will vary, so from a legal and liability perspective, it is safer to err on the side of caution and do more than necessary. If a landlord can demonstrate that they took all reasonable steps to ensure the safety of their tenants, and a tenant is injured regardless, the landlord is not likely to be liable for any compensation payout.
A landlord is in breach of their duty even in cases where they were unaware of a defect, provided that they ought to have known about the issue.
This means that landlords must proactively check for defects during regular maintenance. Landlords should also encourage their tenants, in writing or by email, to promptly report any defects or hazards.
Landlords should also ensure that repairs and maintenance are carried out in a reasonable timeframe.
Do landlords need insurance?
Even a single compensation claim can be financially crippling for a landlord.
If you are a landlord and you employ people, under the Employers’ Liability (Compulsory Insurance) Act 1969, you must have insurance that will cover the cost of injury or illnesses compensation paid out to employees.
Employer’s liability insurance will not cover injuries to tenants and may not cover injuries to visitors to the property.
It is recommended that landlords also take out public liability insurance. Often marketed as ‘landlord liability insurance’ or ‘property owners’ liability insurance’, public liability insurance would cover the cost of financial compensation paid out to tenants or visitors to the property.
Tenants are becoming increasingly aware of their rights. Recent legislation like the Homes Act 2018 is expanding and clarifying tenants’ rights further.
Above all, landlords need to be aware of how wide the grey areas are in regards to liability for tenant injuries. Given the heavy financial cost of paying injury compensation out of your own pocket, landlord liability insurance is strongly recommended.
Whether or not the insurance route is chosen, landlords should stay on top of both mandatory duties like gas safety checks and also more general maintenance and repair.
By involving tenants in the process, and proactively reminding them to report defects or concerns, landlords can stay as informed as possible about the state of their property. This approach will also help to ensure that relations are amicable if the worst does happen and a tenant is injured. Maintaining a positive relationship with the tenant will help to avoid contentious legal action, and will help the parties reach a better resolution faster.