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Defective Premises - landlords treading a very fine line

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For the second time in twelve months, the court has excused a landlord from potential liability under the Defective Premises Act 1972.

The Defective Premises Act imposes a duty on a landlord to ensure that a property is maintained and repaired in such a way that it is kept free from any defects that may cause personal injury or harm.

In the tragic case of Dodd v Raebarn Estates Ltd & Others [2017], Mr Dodd had been staying with a friend in a flat in London but, as he walked down the staircase, he lost his footing and fell. The fall proved fatal. He was in a coma for two years before passing away.

His wife brought a claim under the Defective Premises Act 1972 against the owner of the property and the landlord. She argued that the staircase was defective because it had a narrow tread and lacked a handrail, in breach of Building Regulations.

It transpired that the landlord had reconfigured the staircase in 1988, having obtained the relevant planning permission on the basis of a drawing which showed a handrail. For reasons unknown, the handrail was not present at the time of the fatal accident – either it had never been installed or, as the Claimant argued, it had been removed at a later date. The judge dismissed the latter theory as “speculative and fanciful” and ruled that there was no evidence that the handrail had ever actually been installed.

Ultimately, the judge held that neither the staircase nor the property could be classed as ‘defective’. Whilst a particular part of a building may function inadequately (such as a staircase without a handrail), it did not follow that the inadequacy necessarily equated to disrepair. In order for the section 4 duty to arise, the defect must be due to a lack or repair or maintenance. The judge did not accept that a lack of handrail amounted to disrepair or a lack of maintenance. He drew a distinction between a duty to repair and a positive duty to make safe; he did not regard the two as one and the same.

The facts in the Dodd case mirrored an earlier decision in Sternbaum v Dhesi [2016]. In that case, the court also found in the landlord’s favour. The judge concluded that whilst stairs do represent a hazard, the lack of a handrail did not equate to ‘disrepair’. The court ruled that it would be incorrect to extend the definition of section 4 of the Act to require a landlord to positively act to improve the premises or to make them safe.

Whilst in the above cases, the court erred on the side of the landlord, the decisions are nevertheless a stark reminder to landlords to ensure that they do carry out simple risk assessments and that they consider the fundamental issue of the safety of their properties at the outset. Simple incidents of disrepair could well have disastrous consequences. It is possible that in relation to the Dodd and Sternbaum cases, a different judge on a different day might have come to a different decision entirely; that is the nature of litigation. The cases might also have been decided differently if the landlord had actually removed the handrail (rather than, as in these cases, not installing it in the first place).

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