ICAEW.com works better with JavaScript enabled.

Case law: Court of Appeal clarifies landlords’ duties to inspect, identify and remedy defects at let properties

Landlords will welcome clarification of their duties to inspect let properties, the scope of such inspections and the extent of remedial action which may be required, following a recent ruling.

August 2019

This update was published in Legal Alert - August 2019

Legal Alert is a monthly checklist from Atom Content Marketing highlighting new and pending laws, regulations, codes of practice and rulings that could have an impact on your business.

A council tenant trod on an inspection cover in her garden while mowing the lawn. It broke and she injured herself falling into the hole. The council was responsible for the outside of the property, and the local water company owned the inspection cover. She sued the council for compensation.

The council had inspected the property twice in the recent past but there was little evidence to show what the inspections consisted of.

After expert evidence, the court found that the cover must have been unsafe for a long time (it had been there for some 40 to 60 years and the lip it rested on had corroded away) so that anyone cautiously applying pressure with their foot would have spotted that it was unsafe.

Under defective premises law, a landlord must take reasonable care to make sure anybody who might reasonably be affected by defects in their let premises are reasonably safe from personal injury or damage to their property caused by such defects. This duty applies not just if a landlord knows of a defect, but also if, in the all the circumstances, they ought to have known about it.

The Court of Appeal said this meant there was no duty to routinely inspect let properties, but a duty could arise if, for example, there were known risks at a property. It went on to say that if inspections are actually carried out, they must be carried out with reasonable care. That meant that it would sometimes be enough to carry out a visual inspection, but a more thorough inspection would be required at other times. Relevant factors included:

  • whether a defect was apparent or foreseeable;
  • the type and severity of the risk;
  • any relevant safety regulations;
  • what a more thorough inspection would have involved.

In this case the court found that because the risks posed by a faulty inspection cover were obvious, especially if children had access to the property, and the danger could easily have been spotted by cautiously applying pressure to the cover with a foot then the burden of proving it had carried out its inspections with reasonable care shifted to the council.

The fact the council could produce so little evidence of what had actually been inspected, and that it had not spotted this obvious risk, meant the council had failed to discharge that burden. It should therefore compensate the tenant for her injuries and the damage.

The Court of Appeal said it was irrelevant that the cover belonged to the water company because the council could have required the water board to repair the cover once it discovered it was risky.

Operative date

  • Now

Recommendation

  • Landlords should ensure:
    • they carry out regular inspections of let properties, with the frequency and thoroughness required in the circumstances, unless the tenant is responsible for maintenance and the landlord is confident the tenant is discharging those responsibilities properly;
    • they do so with reasonable care – certainly enough to identify obvious risks, including if children or other vulnerable people have access to the property;
    • they keep detailed records kept of risks identified and remedial action taken.

Case ref: Rogerson v Bolsover District Council [2019] EWZA Civ 226

Disclaimer: This article from Atom Content Marketing is for general guidance only, for businesses in the United Kingdom governed by the laws of England. Atom Content Marketing, expert contributors and ICAEW (as distributor) disclaim all liability for any errors or omissions.

Copyright © Atom Content Marketing