Here is a question to the blog clinic from Trish (not her real name) who is a tenant:
I have rented a house for two years, my landlord has always done emergency repairs on the property like replacing the boiler when it broke down. However there is a lot of other maintenance which needs attention, for example our shower has not worked for months (since the boiler was replaced), the fence in the garden has collapsed and there is a growing damp patch in my son’s bedroom.
I keep chasing my landlord and for a while he said he would come round and look but he never did, now he’s stopped responding at all. Then last week I had a letter saying my rent is going up.
My question is can I refuse the rent increase on the basis that the landlord is doing his duty? I don’t want to be an awkward tenant but I feel the landlord only cares about one thing.
Several things to say here. First, probably your landlords main concern IS the rent – after all renting out property is a business and no doubt he has his own expenses.
The disrepair issues
Second, it may be that some of the problems are actually down to you do deal with not him. Landlords have certain repairing obligations under s11 of the Landlord & Tenant Act 1985 but this does not cover everything that goes wrong in the property. You have a duty too to maintain it and keep it in good condition.
Then often whether a repair item is down to you or your landlord will depend on what caused it in the first place. Damp and condensation are very difficult here. There are a number of different causes – all too often it is actually down to the way the tenant uses the property.
So if the shower stopped working BECAUSE of the work on the boiler, then repairing it is probably down to your landlord, otherwise it may not be.
Fences are always difficult. Usually tenancy agreements are silent about who should be responsible, in which case it is arguable that it is up to the tenant to deal with this (as for the duration of the tenancy, it is the tenant’s property). If you are considering staying in the property long term, offering to share the cost with the landlord is one way forward.
The rent increase
So far as the rent increase is concerned, you do not have to agree to this. The landlord cannot force a rent increase on you (unless he uses the statutory notice procedure and even then you can challenge the rent if you consider it is higher than the market rent).
However if you refuse to agree to the new rent, he always has the option of serving a section 21 notice on you, requiring you to leave. This, sadly, often happens.
So probably the best advice I can give you is to think seriously about whether you want to stay in this property long term and act accordingly.
Two options
If you want to stay, you will probably have to agree to the new rent and share the costs of the items that need dealing with. You should try not to antagonise the landlord or do anything which will make him decide to serve notice on you.
If you are intending to move out, then you should not sign a new tenancy agreement once your fixed term ends (the landlord cannot force you to sign or to leave without a court order for possession, if he tries that it illegal eviction and is a criminal offence), and carry on paying the exiting rent until you have found somewhere to move to.
You will then need to give the landlord one months notice, ending at the end of a period of your tenancy.
Fences are definitely tenant liability. They are not part of the premises under 1985 L&T and are not Landlord liability.
I always used to think they were until several months ago when it was flagged up to me as otherwise. I didn’t believe it but further detailed research confirms this is correct.
In effect it is like appliances except they are specifically excluded from s11 responsibilities. Fences are not mentioned but as they are not contracted in as it were then they too are excluded.
Rent increase and damp patch I agree. Unless there is an actual structural failure in a property built post 1945 highly unlikely to be damp, more likely extreme condensation and probably coldest spot in the house.
I would contest that the tenant is responsible for maintaining fences. I have been a landlord for many years and have always maintained fences, I would not expect or even trust my tenants to carry out repairs. It is also part of statutory obligations, what would happen if that fence panel blew into a road in front of a passing car causing an accident? Would a judge agree you acted appropriately by telling the tenant to fix it? I think not.
My understanding of the law is that if it is not in the tenancy agreement, it is the landlord’s responsbility to maintain, unless you can direct me otherwise.
Hi Alan
With all due respect you can of course contest what you like, but I can assure you it is so.
The Landlord is not obliged, at LAW, to repair fences as opposed to the roof if it blows off or a window if it falls out.
I find it odd, as I said for years I thought it was covered under L&T 1985 but it is not. Neither is it covered H Act 2004 under HHSRS.
No-one is saying the Landlord cannot step in and accept responsibility, but the legal position is quite clear.
Tell me where the Statutory Obligation that supports your view is set out please Alan but don’t spend too much time on it. I used to think it existed, but it doesn’t!!
Your understanding of the Law is actually the wrong way round Alan – it is only LL liability if the Law says so, or for some reason if the LL chooses to accept such liability by stating it in the contract (agreement).
Perhaps reference to the Statutory Obligations specific to the Landlord Tenant Act 1985 is misleading. There may not be any mention of liability in this regards, but a landlord would certainly be vicariously liable in the event of an injurious accident. I am also sure that the Housing Health and Safety Rating System would enforce the landlord to repair a fence if a tenant had reported it.
The law may not state it, but any landlord who chooses to rely on their tenant to repair a fence is playing a dangerous game, in my opinion.
In regards to the original comment about damp. I agree that in most cases damp is directly linked to condensation but it is rather poor behaviour for a landlord to at least investigate the issue. Never assume the tenants lifestyle is to blame.
As regards the fence the HHSRS does not cover such items as it does not affect the health etc of the occupiers. The worked examples of hazards produced by the Local Government Association does not have any reference to boundary fences. If however the fence itself is dangerous to the public or indeed the tenant,then there may be a liability in negligence. That means that the danger should be prevented but it does not mean that the fence should be replaced; it could simply be removed or made safe.
Tessa, there was a reference to liability for fences in Woodfall’s Landlord & Tenant. I had a very old copy and am not sure if it is still published but as far as I am aware the liability has not changed.