A case heard in the Court of Appeal is an essential reminder to residential landlords that they need to be clear on their duties under the Defective Premises Act 1972.

In Rogerson v Bolsolver District Council (26 February 2019), which we go in to in detail below, the Court of Appeal has ruled on a landlord’s duties under S4 of the Defective Premises Act 1972.

S4, in summary, addresses the duties of landlords to take reasonable care to prevent a defect in the state of the premises injuring someone or causing damage to their property.

The full section can be read here https://www.legislation.gov.uk/ukpga/1972/35/section/4

The details of the case of Rogerson v Bolsolver District Council

Ms Rogerson stepped onto a inspection cover which was situated in her front garden, it gave way and she fell through the cover into the void beneath. The cover was the property of a water company (Severn Trent Water Limited), not the landlord (Bolsover District Council).

The council had inspected the property in May 2013 and had undertaken a survey in January 2014. The court found that there was no evidence the council had established the condition of the cover and identified its existence to be an obvious risk even if the responsibility was that of the water company.

The Judgement and S4 section of the Defective Premises Act

The lead judgement found that there was no general duty upon landlords to inspect but that certain situations may imply a duty to inspect, each case will depend on its individual facts. In this case there was thought to not be a requirement to inspect under S4.

However, the council had carried out inspections (at the start of the tenancy and a 10 year stock review) and the court found that if an inspection was undertaken it should be undertaken with reasonable care and evidence whether the defect that resulted in the injury was or should have been discovered during the inspection.

The court found that had the inspection been undertaken to a reasonable standard the defect (and hence the risk) would have been discovered.

We must note the second judgment in the case which suggests there is a more general duty to inspect when there is a clear and obvious danger (the existence of the cover)

What the decision means for landlords

Whilst there is [probably] no general requirement to inspect a property, landlords should bear in mind that the court will import occasions when it is reasonable to carry out an inspection. There is no conclusive list as to when this might be but we might conclude that new tenancies, periodic stock inspections and the existence of known dangers (noting the court’s description of an inspection hatch as such) maybe included.

Ought in all the circumstances to have known

Emphasis was given to the phrase “ought in all the circumstances to have known of the relevant defect” which stresses the court’s reliance in this case, and likely in future cases, the need to consider the particular facts of the case.

Consider (and document) whether an inspection is appropriate

Landlords should therefore ensure that they are aware of all aspects of their property, consider (and document) whether an inspection is appropriate and that if inspections are undertaken they are done to a reasonable standard with a clear, detailed record being kept of exactly what was done, by whom and the findings. If further work is identified as a result then that should be documented and completed, to include contacting third parties if they are responsible for a hazard.

Helen Thomas is a solicitor and member of the Dispute Resolution team.  For more information on this, or any tenancy related matter please contact Helen on 01872 265100 or email drt@stephens-scown.co.uk