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LANDLORD and TENANT: RESPONSIBILITY for STATE and CONDITION of PROPERTY Item 5 of the Sixth Programme of Law Reform: Landlord and Tenant

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LANDLORD and TENANT: RESPONSIBILITY for STATE and CONDITION of PROPERTY Item 5 of the Sixth Programme of Law Reform: Landlord and Tenant I' The Law Commission (LAW COM No 238) LANDLORD AND TENANT: RESPONSIBILITY FOR STATE AND CONDITION OF PROPERTY Item 5 of the Sixth Programme of Law Reform: Landlord and Tenant Laid before Parliament by the Lord High Chancellor pursuant to section 3(2) of the Law Commissions Act 1965 Ordered by The House of Commons to be printed 19 March 1996 LONDON: HMSO - E20.40 236 The Law Commission was set up by section 1 of the Law Commissions Act 1965 for the purpose of promoting the reform of the law. The Commissioners are: The Honourable Mrs Justice Arden DBE, Chairman Professor Andrew Burrows Miss Diana Faber Mr Charles Harpum Mr Stephen Silber QC The Secretary of the Law Commission is Mr Michael Sayers and its offices are at Conquest House, 37-38 John Street, Theobalds Road, London, WC 1N 2BQ. The terms of this report were agreed on 13 December 1995 when the Honourable Mr Justice Brooke was Chairman. .. 11 1 THE LAW COMMISSION LANDLORD AND TENANT: RESPONSIBILITY FOR STATE AND CONDITION OF PROPERTY CONTENTS Pa ragraph Page PART I: INTRODUCTION 1 Introduction 1.1 1 Defects in the present law 1.7 3 Referral by the Department of the Environment 1.14 5 Options for reform 1.16 7 The response on consultation 1.19 8 Approach to reform 1.27 11 Acknowledgements 1.28 11 Structure of this report 1.29 11 PART 11: THE MEANING OF “REPAIR” 13 Introduction 2.1 13 “Repair” 2.2 13 “Repair” is not “renewal” 2.3 14 “Repair” is not “improvement” 2.4 14 Inherent defects 2.5 15 Identifying “repair” 2.6 15 Qualifying words 2.7 16 The meaning of a covenant to “keep in repair” 2.9 17 When the covenantor must be notified of disrepair 2.10 17 Limitations on the recovery of damages for breach of a repairing covenant 2.14 19 Is any reform needed? 2.15 20 PART 111: IMPLIED TERMS: THE PRESENT LAW 21 Introduction 3.1 21 Landlords’ obligations as to the state and condition of property let 3.2 21 The general rule: no liability in contract or tort 3.2 21 CONTRACTUAL LIABILITY 3.3 21 LIABILITYIN NEGLIGENCE 3.4 21 LIABILITYIN NUISANCE 3.5 22 Exceptions to the general rules 3.7 23 IMPLIED STATUTORY OBLIGATIONS 3.8 23 FURNISHEDACCOMMODATION 3.9 24 ESSENTIALRIGHTS OF ACCESS AND USER IN MULTI- OCCUPATIONAL DWELLINGS AND HOUSING ESTATES 3.10 25 IMPLIED CONTRACTUAL TERMS 3.11 25 Implied terms 3.12 26 Implied terms: conclusions 3.17 28 ... 111 Paragraph Page PART IV: FITNESS FOR HUMAN HABITATION 30 Introduction 4.1 30 Fitness for human habitation: the obligation 4.2 30 Fitness for human habitation: historical background 4.7 32 The origins of the legislation 4.7 32 The purpose of the legislation 4.8 33 The development of the legislation 4.10 34 Rent limits and “persons of the working classes” 4.1 1 35 The meaning of “fitness for human habitation” 4.20 39 Introduction 4.20 39 Judicial interpretation 4.21 40 Statutoy criteria 4.24 41 Two restrictions on a landlord’s liability for unfit premises 4.28 43 Notice to the landlord 4.28 43 Unfitness must be remediable at reasonable expense 4.30 45 Fitness for human habitation: public health legislation 4.31 46 Repair, closing and demolition orders under the Housing Act 1985 4.33 47 Thefitness standard 4.37 48 Differences between the new and old standards 4.39 50 Repair, closing and demolition orders 4.45 51 No enforcement against a local authority 4.48 53 Statutory nuisances 4.49 54 “Prejudicial to health or a nuisance” 4.49 54 Enforcement 4.5 1 55 Other public health legislation 4.55 57 Limitation on public remedies: no compensation in the absence of a criminal conviction 4.56 58 Conclusions 4.57 59 PART V: IMPLIED STATUTORY REPAIRING OBLIGATIONS 60 Introduction 5.1 60 Landlord’s obligations under a short lease of a dwelling-house 5.2 60 The obligations 5.2 60 Extension to other parts of the building 5.3 61 Exceptions to the landlord’s implied obligations 5.7 62 Obligations cannot be excluded 5.8 63 Leases to which the covenant applies 5.9 64 The history of the legislation 5.11 65 Scope of the landlord’s obligation 5.12 65 Obligation takes effect as a repairing covenant 5.14 67 Liability for the structure and the exterior 5.18 69 Landlord’s duty of care 5.21 70 Background 5.21 70 The obligation 5.22 71 The extension of a landlord’s obligations to repair 5.26 73 The property to which the duty of care applies 5.27 74 Limited to safety of persons and property 5.28 74 Conclusions 5.29 74 iv Paragrap h Page PART VI: STATUTORY REPAIRING OBLIGATIONS: A CRITICAL SUMMARY 75 Introduction 6.1 75 Implied obligations as to fitness 6.2 75 Criteria for fitness 6.6 76 Public law remedies in cases of unfitness 6.9 76 Implied obligation to repair in short leases 6.14 77 Landlord’s duty to take reasonable care where he has a right or duty to repair 6.17 78 Regional practices 6.20 79 Conclusions 6.21 79 PART VII: IMPLIED TERMS: PROPOSALS FOR REFORM 81 Introduction 7.1 81 Defects in the present law 7.2 81 Objectives of reform 7.4 82 Proposals for reform 7.7 83 Introduction 7.7 83 Implied obligation in relation to the premises let 7.10 84 Leases to which the default covenant would not apply 7.13 86 SHORT LEASES OF RESIDENTIAL ACCOMMODATION 7.13 86 AGRICULTURALHOLDINGS AND FARM BUSINESS TENANCIES 7.14 86 ORAL LEASES 7.15 87 Standard of repair 7.16 88 Applicability to the whole and to each and every part 7.18 88 Exclusion and modification 7.19 88 How the implied obligation would work 7.22 89 Implied obligation in relation to common and other parts 7.25 90 Commencement 7.31 92 PART VIII: FITNESS FOR HUMAN HABITATION: PROPOSALS FOR REFORM 93 Introduction 8.1 93 The incidence of leasehold property that is unfit for human habitation 8.2 93 The case for reform 8.10 98 Why a civil remedy is needed 8.10 98 Extending section 8 of the Landlord and Tenant Act 1985: possible options 8.13 100 Objections to reform 8.17 102 Introduction 8.17 102 Paying for an extended obligation of fitness 8.18 102 The effect on local authorities 8.22 104 THE SPECIAL STATUS OF LOCAL AUTHORITIES 8.22 104 SHOULD LETTINGS BY LOCAL AUTHORITIES BE EXCLUDED FROM THE IMPLIED FITNESS OBLIGATION? 8.25 106 The impact of civil remedies on renovation grants 8.26 107 INTRODUCTION 8.26 107 THE PRESENT LAW: MANDATORY RENOVATION GRANTS IN CASES OF UNFITNESS 8.27 107 V Paragraph Page THE SHORTCOMINGS OF THE PRESENT SYSTEM AND PROPOSALS FOR CHANGES TO IT 8.29 108 WOULD THE PROPOSALS FOR AN IMPLIED FITNESS OBLIGATION CONFLICT WITH THE POLICY OBJECTIVES OF RENOVATION GRANTS? 8.31 110 Proposals for reform 8.34 111 Introduction 8.34 111 The implied covenant 8.35 111 THE GENERAL RULE 8.35 111 &STRICTIONS ON THE IMPLED COVENANT 8.36 112 AN EXCEPTION THAT WOULD NO LONGER APPLY 8.40 113 The premises to which the obligation would apply 8.41 113 The leases to which the obligation would apply 8.42 114 Leases which would be outside the obligation 8.43 114 AGRICULTURALHOLDINGS AND FARM BUSINESS TENANCIES 8.43 114 LEASES TO LOCAL AUTHORITIES, THE CROWN AND SIMILAR BODIES 8.44 115 LAND HELD OR ACQUIRED FOR DEVELOPMENT 8.45 115 Landlord’s right of entry 8.53 119 Thefitness standard 8.54 119 Commencement 8.59 121 PART IX: SPECIFIC ENFORCEMENT OF REPAIRING COVENANTS 122 Introduction 9.1 122 Specific performance: the present law 9.2 122 The nature of specific performance 9.2 122 ADEQUACY OF DAMAGES 9.3 122 “MUTUALITY~’OF REMEDY 9.7 124 SUPERVISION 9.8 125 NO PERFORMANCE OF PART 9.10 127 Enforcement of repairing covenants - general principles 9.11 127 Repairing covenants - specific performance against the landlord 9.12 128 SPECIFIC PERFORMANCE: INHERENT JURISDICTION 9.12 128 SPECIFIC PERFORMANCE: STATUTORY JURISDICTION 9.14 130 SPECIFIC ENFORCEMENT BY MANDATORY INJUNCTION 9.15 131 Repairing covenants: no specific performance in favour of a landlord 9.18 132 Can an extension of the availability of specific performance be justified? 9.21 134 Specific enforcement of repairing obligations: the case for reform 9.23 136 Defects in the present law 9.23 136 The advantages of specific performance 9.27 137 Proposals for reform 9.31 139 Commencement 9.34 141 Other matters 9.35 141 Damages 9.36 141 Rights to enter 9.40 144 Repairing obligations and the Crown - 9.41 144 vi Paragraph Page PART X: WASTE 146 Introduction 10.1 146 Waste 10.9 148 The nature of waste 10.9 148 Types of waste 10.17 152 Liability for dzfJerent types of waste 10.22 155 TENANTS FOR YEARS AND PERIODIC TENANTS 10.22 155 TENANTS AT WILL 10.23 155 TENANTS AT SUFFERANCE 10.24 156 LICENSEES 10.25 157 Obligation of tenantlike user 10.26 157 The case for reform 10.30 159 Introduction 10.30 159 Defects in the present law 10.31 160 The need to make provision for informal relationships 10.32 160 Proposals for reform 10.33 161 Objectives of reform 10.33 161 Recommendations 10.35 161 ABOLITIONOF THE APPLICATION OF THE LAW OF WASTE TO TENANCIES AND LICENCES 10.35 161 THE CREATION OF A NEW IMPLIED COVENANT OR DUTY 10.37 162 EXCLUDINGTHE COVENANT OR DUTY 10.40 163 REMEDIES 10.42 164 COMMENCEMENT 10.44 165 PART XI: SUMMARY OF RECOMMENDATIONS 166 PART I1 - THE MEANING OF “REPAIR’ 11.2 166 PART VI1 - IMPLIED TERMS 11.3 166 First implied covenant 11.3 166 Second implied covenant 11.6 166 Provisions applicable to both covenants 11.10 167 Commencement 11.14 168 PART VI11 - FITNESS FOR HUMAN HABITATION 11.16 169 The general rule 11.16 169 The premises to which the obligation would apply 11.21 170 The leases to which the obligation would apply 11.22 170 Landlord’s right of entry 11.27 171 The fitness standard 11.28 171 Commencement 11.32 172 PART IX - SPECIFIC PERFORMANCE OF REPAIRING COVENANTS 11.33 172 Commencement 11.36 172 Other matters 11.37 173 Repairing obligations and the Crown 11.38 173 PART X - WASTE 11.39 173 Abolition of the application of the law of waste to tenancies and licences 11.39 173 The creation of a new implied covenant or duty 11.41 173 Commencement 11.46 174 APPENDIX A: Draft Landlord and Tenant Bill with Explanatory Notes 177 vii Paragraph Page APPENDIX B: Extracts from the principal statutes referred to in the report 21 1 APPENDIX C: List of persons and organisations who commented on Consultation Paper No 123 229 I ~ I I ..
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