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June 18, 2010

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Landlords: avoid personal injury damages

Recent high-profile cases in Scotland in which landlords in the social and private rental sectors were sued for personal-injury damages demonstrate the need to keep up to date with best practice in the area, says James Barrowman.

The last few months have seen a number of warning shots fired across the bows of housing associations and landlords by Scotland’s highest civil court on the subject of their repair obligations. Since October 2002, social rented tenancies have been subject to the repair provisions in the Housing (Scotland) Act 2001. These provide that a landlord must ensure that a property is wind and watertight and, in all respects, reasonably fit for human habitation, and that they keep the property in that condition throughout the tenancy.

While there is no explicit statutory provision on the issue, it is understood that, as at common law, the continuing obligation is subject to the landlord’s knowledge of any defect; certainly, the landlord is explicitly given a reasonable time to repair the defect after having become aware of it.

That raises the issue of when a property becomes less than reasonably fit for human habitation. Clearly, it is not the case that any defect whatsoever will lead to such a classification. Older examples of defects that do make a property unfit at common law include infestation of insects, and inadequacy of drains or water supply.

From these, it may be thought that only major defects will make a property unfit for living in. However, clarification was obtained from the House of Lords in the leading case of Summers v Salford Corporation, in which Lord Atkin stated that a property will not be reasonably fit for human habitation where, by ordinary use, personal injury may be caused to the occupier. This has led to some comparatively minor defects making a property unfit for habitation.

In Summers, the defect was a broken sash cord on a window, which would usually be considered relatively minor in a wider property context. However, the broken cord put a strain on the other cord, so that anyone opening or closing the window would be at risk of injury. This meant that the window had to be either permanently open, or permanently closed. In a two-bedroom flat, the lack of any ventilation in one of the rooms rendered the whole property unfit for human habitation. The leading Scottish case on the subject found that a broken pane of glass in a toilet door would have the same effect.

Beyond that, the 2001 Act provides that, when determining whether a property is less than reasonably fit for human habitation by reason of disrepair or sanitary defect, the relevant building regulations should be considered. The most common use of this provision, and its statutory predecessors, has been in cases demonstrating that landlords were at fault for providing properties that became subject to dampness as a result of thermal insulation values less than those provided for in the regulations.

Since September 2007, private-sector tenancies have instead been subject to the Housing (Scotland) Act 2006, which puts a statutory duty on landlords to ensure that the property meets a repairing standard (including being wind and watertight, and reasonably fit for human habitation) at the start of, and at all times during, the tenancy. The continuing duty is explicitly subject to the landlord being notified of the defect, or otherwise becoming aware of it, with the clear implication that the initial duty is not. The landlord also meets their obligations under the continuing duty if they then repair the defect within a reasonable time thereafter.

Todd v Clapperton

The case of Todd, although dealing with a private-sector tenancy, is very significant. The Pursuer’s case was that, on the day in question, he and his partner had been returning to their living room. He (Mr Todd) was entering the living room behind, and fairly close to, his partner. She had pushed the door open, but it had hit a footstool and bounced back. He put his left hand out to avoid it closing. His hand came into contact with one of a number of glass panels in the door, which then broke and cut his hand.

Mr Todd’s case was dismissed on the basis that the judge, Lord Bannatyne, for a number of reasons, could not be satisfied that this was how the accident had occurred. Private-sector tenancies, at the time of this incident, were subject to the repair obligations in the Housing (Scotland) Act 1987, of which the terms are identical to those of the 2001 Act. The Pursuer’s case was firstly based on the warranty that the property was reasonably fit for human habitation, under the 1987 Act. It was accepted by Lord Bannatyne that the defect in the glass rendered the property less than fit for human habitation. However, he was unable to accept that a reasonable inspection would have identified the defect.

The question then arose as to whether the Defender (Clapperton, the landlord) would be in breach of his obligations where, as in this case, it was not accepted that an inspection would have identified the defect. Lord Bannatyne held that the Defender would be in breach, and that if the Pursuer’s factual case had been accepted, he would have been successful – despite the lack of either actual knowledge or constructive knowledge on the part of the Defender. He concluded his judgement by quoting Sheriff Principal Bowen in a previous, similar case to the effect that, unfair as this may be on landlords, it was no more unfair than denying tenants a remedy.

Kirkham v Link Housing

The case of Kirkham, on the other hand, concerned the pathway leading from the front door of the Pursuer’s semi-detached house to the pavement. The pathway was not used in relation to any other tenancy.

The Defender, Link Housing’s system of inspection relating to such matters was described as “ad hoc”. A housing officer, called out in relation to a defect at a property, would examine the surrounding area for other defects – a process that fell short of a formal inspection. Common parts, on the other hand, would be formally inspected every three months.

The Pursuer’s initial arguments that the path was a common part requiring to be inspected under the terms of the tenancy agreement, and that it should have been repaired as soon as the Defender became aware of it, were both dismissed fairly easily, on the basis that common parts, unlike the path, required to be shared, and that there was no evidence that the Defender had been aware of the defect.

The Pursuer’s next basis for liability was an argument that the Defender was obliged to put in place a pro-active inspection regime in relation to the structure and exterior of their houses. Lord Brodie again rejected this argument, holding that the clause in question did nothing beyond explaining the repair obligations earlier in the agreement.
Finally, an attempt was made to argue that the Defender had breached his duty to take reasonable care for persons on the premises. Lord Brodie took the view that this did not appear to require any more than was provided by the tenancy agreement. Further, he felt unable to support the argument, given that no evidence had been offered as to what a reasonable system of inspection would involve, beyond the evidence from the Defender’s witnesses as to their “ad-hoc” inspections.

Lessons for landlords

Both cases sound a reminder for landlords, after almost a decade of the Scottish secure tenancy (SST) regime, that the law is not standing still. Todd provides probably the clearest clarion call. It has long been widely thought that fault must be established on the part of the landlord before liability can attach; hence, the general need for notification of a defect. Todd clarifies that this is not the case, at least in relation to defects that pre-date the tenancy. Landlords must rely entirely on preventative measures by providing as stringent pre-litigation inspections as they are able to so do.

Kirkham provided a welcome clarification of both common areas, and the steps required to comply with the SST agreement in relation to unshared exterior property. However, whether anything further is required is unclear. The Act requires landlords to take reasonable care but, as reasonableness is often determined with reference to what is done by similar persons, its definition can change over time. Thus, it would seem advisable for other landlords to ensure that housing officers operate a similar “ad-hoc” system as the Defender here, by at least checking the surrounding area when inspecting reported defects.

Beyond that, they should have regard to practice across the sector. If pro-active exterior inspections of unshared properties become more common, or even the norm, then other landlords will be well advised to follow suit.

James Barrowman is a senior solicitor with Brodies LLP.

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