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In February 2019, the Court of Appeal heard the case of Elizabeth Rogerson v Bolsover District Council - a judgment that will impact on how landlords should interpret Section 4 Defective Premises Act, and have implications for how RPs carry out and document property inspections.
Under s.4 of the Act, a landlord is under a duty to all persons who may be reasonably expected to be affected by defects in a property to ensure that they are safe from personal injury or damage caused by those defects. This duty will be owed by the landlord if the landlord knew, or ought to have known in the circumstances, of the relevant defect.
In summary, the claimant was a tenant of the defendant who had sustained injuries as a result of a defective inspection cover which gave way when she was mowing her lawn. The claimant’s leg and body fell through the cover into a chamber beneath which channelled water sewage. Following the claimant’s accident she notified the defendant of what had occurred but, even then, no inspection was carried out. The claimant brought an action against the defendant for personal injury, loss and damage on the basis that the defendant either knew, or ought to have known, of the defect under s.4 (2) DPA.
The original judgment found that the defendant was in breach of its s.4 obligations and awarded the claimant over £15,000. On appeal, although the parties agreed that s.4 was engaged, the primary issue was what s.4 required the landlord to do.
The claimant argued that s.4 required the landlord to have a system of inspection. However, in this case two inspections were in fact carried out. Furthermore, the claimant did not provide any case law to support her argument.
The Court therefore concluded that the issue was not whether the landlord had a duty to inspect, but whether reasonable care was taken in carrying out the inspections; and whether the defect which resulted in the claimant’s accident was, or should have been, discovered as a result of either inspection.
Under the tenancy agreement, the defendant had an express duty to ‘maintain the structure and exterior of the property’. In light of this and the locality of the inspection cover, the defect was captured by the duty. The claimant argued this duty had been breached as the defendant either knew or ought to have known of the defective inspection cover under s.4 (2) DPA when the defendant inspected the property in 2013 and 2014.
Expert evidence before the Court indicated that inspection covers were a clear and obvious safety risk; they were large and their purpose was well-known. It was therefore not unreasonable to say that the defendant should have inspected it. The expert stated that a very simple pressure test could have been used to determine the safety of the cover; this test was simple and easy for the defendant to carry out.
Given the corrosion and age of the inspection cover, it was found that if the defendant had carried out the test on inspection in either 2013 or 2014, it would have indicated to the defendant that the cover was defective.
The Court noted that the burden fell on the defendant to prove that they had taken reasonable care in inspecting the cover. Due to the paucity of documentation provided by the defendant, they were unable to bring any evidence as to what was seen or done on the inspection or whether a pressure test was carried out.
The Court took account of the inadequate nature of the defendant’s documentation relating to both inspections and found the claimant’s allegations to be true. The Court concluded on the facts that the landlord was not aware of the defect, but ought to have known of it and the defendant was found to be in breach of its obligation under s.4.
This judgment will ultimately have an effect on how landlords should approach their s.4 obligations. You, as landlords, are at risk of litigation if your duties are not carried out reasonably, and in light of the judgment, adhering to the following three key points will help ensure your duties are carried out in such a manner and reduce your exposure to legal challenge.
As a preliminary point, you should become well informed of your obligations before any inspection is carried out. Checking Tenancy Agreements is vital in understanding which areas of the property your duty is owed.
Although the court found that the landlord had no duty to inspect, if the landlord does not carry out inspections reasonably, this may be an indication to the Court that the landlord ought to have known of the defects. A system of inspection should still therefore be considered.
Part of the defendant’s defeat was owing to the lack of documentation which would have indicated if a pressure test was carried out. The defendant was only able to provide a very basic pro forma which had ticked an ‘external issues’ box to suggest the exterior had been inspected. The Court was dissatisfied with this and further evidence was required to prove their duty had been carried out reasonably.
It is therefore prudent for Landlords to take careful consideration on how inspections are documented. Ask yourself, for example: what areas were inspected?; what tests were carried out?; were they successful?; did the tests indicate any risks?; what was done about them?
If you would like further advice on your obligations under Section 4 Defective Premises Act, or wider support on how to ensure best practice and avoid legal challenge in relation to your approach to housing and asset management please get in touch with our Partner and Head of Housing Management, Melanie Dirom – click here.
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