s. 4 Defective Premises Act 1972 - What duty do landlords have to inspect their properties?

20 June 2019

Peter Bourke and Alexandra Sollohub look at section 4 of the DPA.

In essence section 4 imposes on a landlord a duty to take such care as is reasonable in all the circumstances to see that the premises being let are reasonably safe from personal injury or from damage to their property caused by a relevant defect.

In the case of Elizabeth Rogerson v Bolsover District Council [2019] EWCA Civ 226 a council tenant stepped backwards onto an inspection cover in her front garden whilst mowing the lawn. The inspection cover gave way and her left leg and body fell into the void below, resulting in personal injury. The claim under s.4 Defective Premises Act 1972 was against the landlord on the basis that it had an obligation under the lease to maintain the structure and exterior of the property even though the cover itself was owned by Severn Trent Water.  Although the landlord had carried out two recent inspections of the property only scant evidence was produced as to what the inspections had involved.

It was accepted that the manhole cover was in an unsafe state and the issue was whether reasonable care had been taken during the inspections. The Trial Judge accepted the claimant's expert’s assessment that a simple pressure test, i.e. cautiously applying pressure by foot to the inspection cover to see if there was any give, would have brought the defect to light, and concluded that the inspections had been inadequate.

The Court of Appeal confirmed that the Act does not impose a generic duty on landlords to inspect tenanted properties. However, a duty to inspect may arise as a result of individual circumstances. The relevant circumstance is whether the landlord ought in all the circumstances to have known of the relevant defect.

Although Lady Justice Davies, who gave the lead judgment, stated

"I do not read any of the authorities cited by the parties as requiring a landlord, without more, as being under a duty to implement a system of regular inspection in order to satisfy the provisions of section 4. In each case it is a question of fact, one aspect of that being the knowledge of the landlord as to any likely or known risks or problems in the property. In this case there had been inspections: one triggered by the commencement of a new tenancy; another by a ten-year stock review. These were occasions when it was reasonable to implement inspections."

Lord Justice Males, in a broadly concurring judgment, appears to suggest there is a duty to inspect

"As explained above, however, the only relevant question is whether the respondent ought in all the circumstances to have known of the relevant defect. In this case, the Trial Judge's findings meant that there was a clear and obvious danger, that a reasonable landlord would have ensured a system of proper inspection, that this would have involved a pressure test, and that such a test would have revealed the defect which was of long standing. It would not on the facts found have been merely a potential defect which might develop, but an existing defect, namely the deterioration in the support structure for the inspection cover."

These judgments are subtly different and as Lord Justice Moor concurs with both judgments we can expect the point to be revised by the Court of Appeal in another case in due course.

There are however 2 clear points that arise. If there is a known defect or one which ought to be reasonably known then there is a duty to deal with that defect.  If this knowledge gives rise to an inspection of the property we can anticipate that the courts will require the landlord to inspect the whole property and carry out a proper inspection.  As with most cases it will depend on the circumstances and what is required will depend on how apparent or foreseeable the defect is, the nature and severity of the risk, any applicable safety regulations and what might be involved in carrying out more extensive investigations

In this case it did not matter that the inspection cover did not belong to landlord – the landlord could have discharged its duty by requiring the water board to inspect and remedy the defect.

Advice for landlords

Whilst this case has confirms that there is no absolute standalone duty to inspect, there is a duty to deal with defects that in all the circumstances ought to have been known, a complete failure to carry out any inspections is likely to lead to an inference that the landlord ought to have known about a defect that would have been apparent on inspection.

Although it remains the case that whether a system of regular inspections is required is fact specific and in reaching a conclusion as to the necessity of the inspection the court will have regard to the known or likely risks at the property, if a landlord wishes to protect their position they should inspect. If inspections are carried out, landlords should ensure that these are carried out with reasonable care.  If somebody is hurt and brings a claim evidence of the inspection could well assist the landlord provided there are detailed notes as to the scope and outcome of the inspection. Particular care should be taken where vulnerable occupiers or sensitive property are likely to be found on the premises. Finally, the landlord should ensure that any issues found on inspection are carefully monitored or remedied, as appropriate.

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