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A recent Supreme Court decision is likely to be met with relief by buy-to-let owners of leasehold properties. The court had been asked to consider whether an intermediate landlord was in breach of the statutory covenant to keep the structure and exterior of a dwelling-house in repair. The intermediate landlord had sublet his second floor flat to a tenant under an assured shorthold tenancy. The tenant tripped and injured himself on some uneven paving when taking rubbish out to the communal bins.

Under the terms of the headlease, the freeholder was responsible for keeping the communal areas in good condition, subject to being given notice of the defect. Neither the intermediate landlord nor the freeholder had received notice of any defect.

The Supreme Court held that the intermediate landlord was not in breach of the statutory obligation to repair because the paved area did not fall within the scope of the repairing obligation. However, while the decision will be of considerable comfort to buy-to-let landlords who are in a similar position to the one outlined here, it might not always be clear when a tenant must give notice of disrepair. 

How a landlord can reduce its exposure to repairing obligations? 

What are a landlord's repairing obligations?

A landlord of a residential lease granted for a term of less than seven years has certain statutory repairing obligations. These include an obligation to keep in repair the structure and exterior of a "dwelling-house", including "drains, gutters and external pipes". The term "dwelling-house" is not limited to a house, it also includes a flat.

If the lease is of a dwelling-house that forms only part of a building, then the landlord's obligation to repair applies to the parts of the building in which the landlord has an interest. In these circumstances, the landlord has a defence to a claim if it can prove that it used all reasonable endeavours to obtain, but was unable to obtain, rights that would allow it to carry out the works.

How can a landlord limit its repairing obligations?

Where possible, landlords should try to limit their repairing obligations in any leases by requiring that the tenant give notice of any disrepair first. It may be possible for a landlord to require the tenant to give notice if it sees disrepair, without attempting to restrict its repairing obligations. This might at least give the landlord some warning that repairs are needed. However, a landlord might have trouble enforcing such a provision.

The position on when notices of disrepair are required is still rather unclear. Landlords should therefore monitor their buildings and watch for any possible repair work that might be needed. This is particularly important for landlords who have more than just a lease of an individual flat, as the Supreme Court's decision suggests that they might be liable for some types of repairs, with no right to be notified first.

It is good practice for buy-to-let and other intermediate landlords to visit their properties occasionally to check for disrepair, rather than relying upon the tenant having to give notice. They should then inform whoever is responsible for carrying out the repairs under the terms of their lease.

If you have any questions about this, please contact our Dispute Resolution team on 01904 624185.