We have been asked several questions recently about a landlord's occupiers liability where someone is injured on rental premises. What is the landlord's position?
A landlord's liability for injuries to persons on or near his or her premises can be onerous and ultimately very expensive, hence the vital need for a good landlord's insurance policy - see Total Landlords Insurance
Never rely totally on these general guidelines which apply primarily to England. They are not definitive statements of the law. Before taking action or not, always seek professional advice with the full facts of your case and all documents to hand.
A Landlord's liability to repair will depend on his or her contractual obligations under the tenancy agreement and also statutory rules and regulations - various acts of parliament are involved.
Whereas a residential landlord is responsible for all substantial repairs, a commercial landlord finds herself in a slightly different position depending on the lease repairing obligations and the rights of access she has to the premises.
Under the provisions of the Occupiers' Liability Act 1957, anyone injured whilst visiting the property may seek compensation from the occupier (not necessarily the owner).
When premises are rented, the claim would be brought initially against the occupier (the tenant). However, in a situation where injury occurs because of the disrepair of the premises the landlord could be in the firing line.
Where the Landlord has a duty to repair and has not carried out the necessary work, the claimant would have the same rights against the landlord as against the tenant.
The landlord's defence however, is that a landlord will be held liable only if he or she has been notified of the defect which caused the injury and was "on notice" to do the work. Under the Defective Premises Act 1972, premises let under a tenancy where the landlord is obliged to carry our repairs (all Assured Shorthold and Residential Tenancies) the Landlord has a statutory duty to take reasonable care to ensure that those at risk of injury, including occupants and visitors, are protected from personal injury.
This duty applies where a landlord knew, or ought to have known in the circumstances, of a defect which could result in an accident / injury. The landlord's position on this was clarified by an appeal court decision in the case of Sykes v Harry and another [2001] The tenant and his wife on a shorthold tenancy (AST) suffered from carbon monoxide poisoning which led to brain damage.
The tenants claimed that the landlord was in breach of his implied obligations under s.11 of the Landlord and Tenant Act 1985 to keep the property in good repair, which included the servicing of the gas fire, and also for his breach of the duty of care owed by a landlord under s4 of the Defective Premises Act 1972.
However, the obligation under the 1985 Act applies only where a Landlord has knowledge of a defect. The Judge held that a breach of covenant could not be established and ruled that there was no 'relevant defect' as required by Section 4. The Landlord was not to be held liable.
However, on appeal the appeal court judge held that where a landlord ought to have known of a defect, this would be sufficient under Section 4 of the Defective Premises Act 1972 for the landlord to be held liable. The Landlord was therefore held to be liable. Although he was not aware of the defective fire, he should know that a gas fire requires regular maintenance.
Under a commercial full repairing and insuring (FRI) lease, where repairs are the responsibility of the tenant, the landlord may be in a position to avoid any liability for injuries as a result of defects in the property.
However, in the case of Hannon v Hillingdon Homes Limited [2012], which concerned a landlord's liability under the Defective Premises Act 1972 (DPA), it was shown that commercial property landlords can be held liable in certain circumstances. A commercial landlord can be held liable under the DPA if the lease contains provisions such as (1) a requirement that the landlord is responsible for maintaining or repairing the premises.
Here the duty will arise if the landlord is put on notice of a defect, and (2) an express or implied right in the lease which allows the landlord to enter the premises to carry out maintenance or repair. Here the duty will arise if the landlord could be in a position to exercise this right. In any case landlords of multi-occupied premises, whether residential or commercial, are responsible for the maintenance of the common areas, which usually includes fire safety.
Landlords could be held liable for injuries caused by defects due to changes made by their tenants, even if these changes are in breach of the lease terms. Commercial landlords in particular but also residential and HMO landlords should be aware of the clauses in their agreements regarding management responsibilities.
Secondly, landlords should have procedures in place which give rise to regular inspections and risk assessments where this is appropriate and legally required.
The case in English Heritage v Taylor [2016] nicely illustrates the position that a landlord's liability is not confined to the inside of premises. Maintaining of grounds and being aware of the potential dangers there is also very important.
In this case the plaintiff sustained a severe head injury following a fall while visiting Carisbrooke Castle on the Isle of Wight.
Within the castle's premises there existed an elevated platform situated at one corner. Beneath this platform lay a grass pathway, and a steep slope descended from the platform to a grassy area.
On the opposite side of the platform a slope dropped steeply into a dry moat. The claimant ventured down the path where he lost his footing and tumbled into the moat.
The presence of the moat was not readily apparent to someone taking the same route as the claimant. There were no warning signs indicating the danger.
While occupiers are not obligated to caution against obvious risks, the court determined that this particular risk was not readily apparent. Consequently, it concluded that the defendant had breached its duty under the Occupiers' Liability Act 1957. However, the court also assigned 50% contributory negligence to the claimant.
The court underscored its obligation to consider all circumstances, including the degree of obviousness of the danger and, in suitable cases, aesthetic considerations. Owners and in some cases occupiers are expected to take reasonable measures to address potential hazards.
Make sure your policy includes Property Owners Liability up to something like £3 to £5 million of cover. It is vital that you are covered in this way against death or injury to individuals, and that the cover extends to: damages awarded to the claimant, legal expenses and costs defending against a claim, medical expenses, loss of income and the claimant's legal costs if you are found at fault.
If you have any questions about any of the issues here, why not post your question to the busiest Rental Property Forums in the UK You will have an answer in no time at all.
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