A commercial landlord’s guide to the Defective Premises Act 1972

20 September, 2017
by: Cripps Pemberton Greenish

For this week’s trainee solicitor blog, the team caught up with commercial property trainee Lucy Knight. Lucy has been investigating the duties of a commercial landlord under the Defective Premises Act 1975. Read on to find out more…

Introduction to defective premises

Defective premises can cause significant problems to both landlords and tenants of commercial premises. For the tenant, defects may interrupt their use of the premises and cause them financial loss or personal injury. For the landlord, claims made by those injured by, or suffering loss from, defects can be very costly and in turn damage the landlord’s income stream.

In the case of Robbins v Jones in 1863, Chief Justice Earl said that “a landlord who lets a house in a dangerous state is not liable for accidents happening during the term… for there is no law against letting a tumbledown house”. Thankfully, the law has since moved on. What we have now is the Defective Premises Act 1972 (“the Act”); an Act which provides protection for those tenants whose landlord fails to adhere to their repair and maintenance obligations under the lease.

What is the landlord’s duty?

Under the Act, a landlord owes a duty to take reasonable care to see that all persons are reasonably safe from personal injury or damage to their property caused by a relevant defect.

When does the duty apply?

The duty under the Act applies in the following two scenarios:

  1. The duty is owed if the landlord is obliged under the terms of the lease to maintain or repair the premises. This includes leases where, even though the tenant is responsible for repairing the internal areas, the landlord is still obliged to repair any external or shared areas.
  2. The duty also applies if the landlord has a right under the lease to enter the premises to carry out repairs. Such right of entry is standard in most standard commercial leases meaning that the duty under the Act captures the majority of commercial landlords.

What defects are included?

Defects which arise because of a failure by the landlord to comply with its repair obligations under the lease are included under the Act. However, the courts have interpreted this quite narrowly. It does not, for example, extend to having the safest or highest-quality premises or being under an obligation to remedy any design defects. The obligation on the landlord is simply to repair anything which is in want of repair.

Defects must arise during the course of the tenancy, which includes any period where the tenant is in occupation before the start date of the lease, or where the tenancy has come to an end but the tenant remains in occupation.

Does the landlord have to be notified of the defect?

The landlord is liable if they have actual knowledge of the defect. The landlord may know about a defect by carrying out inspections of the premises or receiving notice from the tenant of a defect. Most commercial leases oblige the tenant to notify the landlord of any defect that might create liability under the Act.

However, the Act also implies knowledge on a landlord where they ought to have known about the defect. Many commercial landlords may find it too time consuming to inspect their properties, especially if they have a portfolio of properties let to multiple tenants. However, this laissez-faire attitude could prove dangerous for the landlord as courts will infer knowledge on a landlord who would have known of the defect had he acted reasonably. A prudent commercial landlord will therefore carry out frequent inspections of the premises to identify any defects and ensure they do not breach the obligations contained in the Act.

To whom is the duty owed?

The duty is owed not only to the tenant named in the lease, but to their visitors, family or other persons who might reasonably be expected to be affected by any defect.

The remedies

Damages is the main remedy for anyone claiming against the landlord under the Act. However, the claimant may also be entitled to a mandatory injunction to force the landlord to remedy the defect.

Conclusion

The landlord’s duty to repair defects is far-reaching and may prove very costly. Adequate insurance should protect the landlord against any potential claims. However, a prudent commercial landlord will go one step further and ensure that they carry out frequent inspections of the premises in order to identify and repair any defects before a potential claim occurs.