This is a question to the blog clinic fast track from Doris (not her real name) who is a tenant
Tenancy dated 1st July, 1988 (rent registered and governed by Rent Officer). We have never had an electricity inspection (!). We have no certificates and plenty of trailing wires.
The electrician who inspected the house and has won the tender told us he had never seen a house where the upstairs lighting was unearthed. The house will now be completely re-wired next week but the landlord is refusing the re-wire the outbuilding.
This has an electricity supply (for more than 20 years) and the tumble drier and more importantly freezer are kept there. Landlord will disconnect the supply as electrical company deems it unsafe.
We will be given time to make alternative arrangements (or pay for the rewire ourselves, which involves digging a trench) on our return from annual leave. We were told this two days ago even though the work was schedules a couple of months back.
Question: Is it legal for the landlord to cut the supply to the outbuilding (included in the lease according to the original map) for which rent is paid and refuse to rewire?
Answer
This will be a protected tenancy under the Rent Act 1977 and you have long term security of tenure. This means that you can be a bit more robust in enforcing your rights as your landlord cannot evict you using section 21!
The first point to make is that if your electricity wiring is so awful you must be entitled to compensation from your landlord under the landlord’s statutory repairing covenants in s11 of the Landlord & Tenant Act 1985.
The main question though is whether the landlord is obliged to re-wire the outbuilding. My view is that he should, although I am not 100% certain of this. My reason for saying he should is that the property has been provided with electricity (albeit of a poor standard) for the past 20 years or so and it is therefore, arguable that he should continue to do so as you rely on it for your appliances – in particular, the freezer.
The Housing Act 1985 in s16 says
“lease of a dwelling-house” means a lease by which a building or part of a building is let wholly or mainly as a private residence and “dwelling-house” means that building or part of a building;
The outhouse seems to come within this definition as you use it for keeping necessary appliances. Presumably, because there is no room for them in the main house.
I can however, see that there may be an argument to the contrary as the outhouse is not absolutely essential for living and is (presumably) separate from the main building. And no doubt it will be expensive to re-wire the outhouse and the landlord clearly does not want to incur this expense.
I would be interested to see what views others have, and particular if you have any experience of this situation (which I do not).
I would also be interested to know a bit more of the background to this case – for example, why is the landlord doing the re-wiring – he has volunteered to do it or is he being forced to do it, maybe under pressure from the Local Authority?
What options are open to you?
Ideally, you want the landlord to include the work of re-wiring the outhouse with the rest of the re-wire work.
If your landlord is doing the re-wire under pressure from the Local Authority, you could have a word with them and see what they think about the issue of re-wiring the outhouse. They may tell the landlord he has got to do it.
Otherwise, you could always point out to the landlord that you have a claim for compensation for the poor wiring all these years but that you will agree to waive your rights provided he carries out the re-wire to the outhouse (assuming the value of your claim is equivalent to the cost of the re-wiring – you would have to take advice on this).
If the landlord refuses point blank to agree to pay anything towards the outhouse re-wire, you can always get it done yourself and then seek to deduct it from the rent. If you do this though, there is a procedure to be followed which I describe here.
If your landlord refuses to accept this, the only thing he can do is bring a claim against you for the outstanding rent. If this happened, you would need to defend on the basis that you are offsetting the cost of essential repair work (for which you would need to prove that you had carried out the proper procedure). You could also take the opportunity to bring in a counter claim for compensation for all the years of poor wiring.
It would then be up to the Judge to decide whether he considered the outbuilding should be treated as part of the ‘dwelling house’ or not.
The best thing to do is to take some professional advice before going further. Ideally from a solicitor in a Shelter Office or Law Centre – see my post here for more information.
So would he not have to rewire a garage?
The problem here lies in the use of the word “outbuilding” which smacks of some half derelict shed in a poor state at the bottom of a farmyard. That clearly is not the case here.
Clear Landlord liability as the building was not specifically excluded from the tenancy. All Doris needs to do is call in an EHO and have a HHSRS visit – then the Landlord really would see what a repairs bill can cost, as they will not just look at the electrics and if they are that bad it is a fair bet the insulation, windows, heating system might need attention too.
Landlord’s best bet is to do the work. If the tenant is electrocuted in the outbuilding with the electrician’s report putting him on notice of the defects would be a prosecution open goal.
Question always for a Landlord to answer in this scenario (or gas, furnishings safety etc) is “Would you be happy for your kids to live here?”
Would it not depend on whether the outhouse was originally intended by the lessor to be used for a freezer and tumble drier. If it was in effect a garden store with a single socket to facilitate, say, a lawnmower and the tenant preferred to use the space in a different manner would that make a difference to the landlords obligation! I am a surveyor and see outbuildings regularly used in this way that were always intended originally as garden stores or sheds. Would an outbuilding intended for this use fall within the s16 definition? I might add that it is not uncommon to come across unearthed lighting circuits in the locality that I survey within.
Good point but s16(b) as quoted by Tessa does not say what the purpose is – it does not say the tenant has to occupy the dwelling-house, never mind the outbuilding.
If not specifically excluded must surely be part of the dwelling-house and part of a private residence – private as up to the tenant what they use it for?
(1) The landowner has been forced to do the wiring under the new Housing (Wales) Act 2014.
(2) There is no room in the house for the freezer and tumble drier without major reconfiguration work of the kitchen or turning the small office into a utility room, both of which would be hugely costly.
(3) The outbuildings consist of open garage (too small for this purpose), collages and larger shed which still contains original bakery oven. When we moved in, it had been used as workshop (?)
(4) We are negotiating over boiler maintenance/repair separately as landlords have defaulted over this too.
(5) Landlords have not finished work in office caused by leaky roof (which they replaced) as they say we upgraded from dairy to office so we pay to complete work.
Sounds like a definite HHSRS visit to me to shake this Landlord into discharging his duties. What has turning a room into anything got to do with whether the roof leaks and whose liability the repair is?
This site http://www.rla.org.uk/landlord/guides/responsibilities/repairs.shtml says: “It has been held that the following do not ordinarily form part of the structure of the dwelling-house, namely […] separate garage […]” but does not quote any authority. “Ordinarily” suggests there may be exceptions. As Steven Ways says, I think the key may be what the garage was used for when Doris took the property. It seems that it was not used for housing domestic appliances. If it was not, that may well exclude it from section 11.
However, if when the tenancy started there was a supply of electricity to the garage can the landlord cut it off because it is unsafe without installing a new supply? Is disconnecting the supply a derogation from grant or a breach of the covenant for quiet enjoyment? It may well be. The premises will no longer be able to be used as envisaged when the tenancy began. The only question is whether the change is substantial enough.
Doris refers to the Housing (Wales) Act 2014. I have had a look at the index to the Act, but cannot see any section which leaps out as being relevant.
As I say only if it was an area specifically excluded from tenant use. If it was not, and there was no prior agreement what the outbuilding could be used for, how can Doris be prevented from using it for the purposes which she originally did? Or more correctly, the Landlord excluded from s11 obligations for it?
I would have thought who installed the wiring to the outbuilding and whether it was present at the start of the tenancy would be relevant. It says it has been there for over 20 years but the tenancy is 28 years old.
I am surprised the electrician has no experience of unearthed lighting circuits.
The Landlord and Tenant Act 1985 defines ‘dwelling’ as “a building or part of a building occupied or intended to be occupied as a separate dwelling together with any yard, garden, outhouses and appurtenances belonging to it or usually enjoyed with it;”
We met with the landlord’s agent today. Their argument now is that our original lease dated 1988 was for seven years so not LESS than seven years. The 1985 Landlord and Tenant Act, specifically Section 11, therefore does not apply. Their solicitor states that the Landlords need to go to Counsel to seek clarification.
Interestingly the Rent Registration details clearly state that the allocation of Liability for repairs is:
“In accordance with the agreement (our lease), subject to Sec 11 Landlord and Tenant Act 1985″. Landlord has sight of this and has never challenged it. However, when they fill in the Application for Registration of Fair Rent they state that the Landlord is responsible for the repair of walls, roof and structural and we, the hapless tenants, are responsible for the rest”. (The original lease is definitely not a fair contract with 23 clauses listing our responsibilities and only 3 for the landlord – Office for Fair Trading, Unfair Terms in Consumer Contracts Regulations 1999).
Does the 1985 Landlord and Tenant Act apply please?
S13 of the L&T Act says “for a term of less than seven years.” http://www.legislation.gov.uk/ukpga/1985/70/crossheading/repairing-obligations
So if your tenancy is for seven years then no, it won’t apply.
Presumably they are right about what was on the original tenancy agreement.
Thank you for your prompt reply. Yes the terms of the lease state that the landlord is only responsible for the repair of walls, roof and structural. I would love some legal person to look at the lease, particularly in regard as to whether it is/is not a fair contract. Ideas please bearing in mind our pensioner status?
RESULT: The landlord will pay for and has agreed to the installation of the cabling to the outbuilding needed to restore the connection – overhead maybe rather than underground. Thank you all for your advice and support.
The Rent Office has also sent us a link to their Rent Officer Handbook – Long Tenancies and leases in which it states:
“Furthermore it should be noted that long tenancies with terms exceeding just 7 years are likely to have repairing obligations which are distinct from most protected tenancies. The most common obligations for landlord and tenant in relation to repairs and maintenance are expressed by Section 11 of the Landlord and Tenant Act 1985; however Section 11 specifically does not apply to tenancies with a term exceeding 7 years.”
The RO confirms that our rent was first registered in 1997 and repairs were noted as being under the lease subject to Section 11 of the Landlord and Tenant Act 1985. It has been recorded thus ever since and the landlord has never queried this.
The landlord has advised us that they are asking their solicitor for further advice.
The landlords took legal advice and their solicitor was uncertain as to whether the 1985 Act applied (we have been statutory tenants since 1995 and registered the rent at that time). Their solicitor suggested that they sought Counsel to clarify the situation. They will also contact the Rent Officer, who clearly states in the rent registration documents that the 1985 Act does apply. A final decision has not yet been taken on the re-wiring of the outbuilding at their expense although supply is now disconnected for safety reasons. We have asked for a speedy resolution.
Is it 7 years dead and s11 applies, or only if less than 7 years (which I doubt) or does s11 not apply if the term is more than 7 years, even if by only a day?
Similar confusion has always reigned over the 3 years and is it a Deed scenario
So which is it, as that plus Landlord ability to prove what the initial term was that is the whole key to responsibility here.
The lease is seven years dead.
It is a lease for a term of seven years from 1st July 1988.
I have found a letter from the Landlords stating that the lease would expire 1st July, 1995 so we have proof of seven years dead. I have also found the first rent registration dated 17th July 1997 (application received on 27th May, 1997). The registration document clearly states that the allocation of liability for repairs is:
“In accordance with the agreement dated 1.7.88 subject to Section 11 Landlord and Tenant Act 1985.”
The Landlord has now applied to the Rent Officer for all the archived paperwork to see if there is any written record as to why the Rent Officer made this decision. From what I can see, this wording is on all of the following Rent Registration documents and has never been challenged by the Landlords.
Burn that letter Doris as it proves your tenancy was 7 years and 1 day so in excess of 7 years and getting Landlord off the hook!!
7 years dead would be 30th June
Losing the will to live. Lease states seven years.