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An Update on the Defective Premises Act 1972

July 29, 2019

Section 4 of the Defective Premises Act 1972 (the DPA) places a duty of care upon landlords to ensure that tenants are reasonably safe from personal injury or damage to their property as a result of a relevant defect at tenanted premises where the landlord knows or ought to have known in all the circumstances of the defect.

The case of Rogerson v Bolsover District Council [2019] EWZA Civ 226, determined earlier this year, asked whether or not it is necessary for landlords to implement a system of regular inspection at the property in relation to the duty of care under section 4 of the DPA.

In the instant case, the tenant fell through an inspection cover whilst mowing her lawn causing injury. In accordance with the terms of the lease, the landlord (a local authority) held an obligation to maintain the structure and exterior of the property, whilst the inspection cover itself was owned by Severn Trent Water.

The landlord indicated that it had inspected on at least two occasions but was unable to adduce evidence as to what those inspections involved. The tenant’s expert was able to show that whilst the inspection cover had been in place for a substantial period of time (up to 60 years), rainwater had caused corrosion resulting in the tenant falling through the inspection cover when pressure was applied. The trial judge found that a simple pressure test would have brought the defect to light, and consequently found the landlord’s inspections inadequate.  

On appeal, it was found that section 4 of the DPA does not place a generic duty on landlords to carry out or implement a system of regular inspections, however, a duty to inspect may arise in certain circumstances (for example where there are known risks or the landlord has knowledge of risks with a property). Where inspections are carried out there is also an expectation that these will be carried out with reasonable care. It was therefore held that as the landlord had carried out two inspections, it ought to have known and remedied the defects, and therefore it was liable under the DPA to the tenant.

Consequently, whilst it was determined that there was no general duty to inspect, the specific facts of a case may give rise to such a duty. The steps to be taken will vary but will require an assessment of; how apparent or foreseeable the defect is, the nature and severity of the risk, any applicable safety regulation, and whether more extensive investigations can be carried out.

A complete failure to inspect may lead to a determination that the landlord ought to know of a defect, particularly if that defect would have been apparent on inspection. Any inspections that are carried out should, therefore, be carefully documented, and any remedial works identified and implemented.

If you are unsure of your legal rights and obligation in relation to the DPA, then contact Richard Burraston on 01293 596900 or by email at richard.burraston@stevensdrake.com.

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