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When considering an application for an Injunction and specific Performance, it is important to address the criteria which the Court will consider in any application. The following is an overview of what the court may consider.

Defective Premises Act 1972

s.1 imposes a duty on the landlord to ensure works are done in a workman like manner which include the following

  1. Do work in a professional or workman like manner
  2. Use proper materials and
  3. Ensure that the dwelling is fit for human habitation when completed

the duty to ensure works are done in a workman like manner is not restricted to the workmen themselves but also imposed on the employer so this is the local authority and or estate agents and is owed to the occupant of the property.

“(4)A person who—

(a)in the course of a business which consists of or includes providing or arranging for the provision of dwellings or installations in dwellings; or

(b)in the exercise of a power of making such provision or arrangements conferred by or by virtue of any enactment;

arranges for another to take on work for or in connection with the provision of a dwelling shall be treated for the purposes of this section as included among the persons who have taken on the work.”

In accordance to Andrews v Schoolings (1991) 1 WLR 783, (1991) 3 All ER 723,  CA  the duty can include the failure to carry out the works and there is no difference between the commission and omission.

The duty of the landlord is to

Take such care as is reasonable in all the circumstances to see that the persons owned the duty are reasonably safe from personal injury or property damage caused by the ‘relevant defect’ of which the landlord know or ‘ought…to have known’

The duty under s.4 Defective Premises Act 1972 can be proactively enforced by application for an injunction further to Lafferty v Newark &Sherwood District Council 2016

What is a relevant defect?

This is a defect which the landlord is bound to repair under the express or implied terms of the Landlord and Tenant Act 1985 

11 Repairing obligations in short leases.

(1)In a lease to which this section applies (as to which, see sections 13 and 14) there is implied a (1)In a lease to which this section applies (as to which, see sections 13 and 14) there is implied a covenant by the lessor—

(a)to keep in repair the structure and exterior of the dwelling-house (including drains, gutters and external pipes),

(b)to keep in repair and proper working order the installations in the dwelling-house for the supply of water, gas and electricity and for sanitation (including basins, sinks, baths and sanitary conveniences, but not other fixtures, fittings and appliances for making use of the supply of water, gas or electricity), and

(c)to keep in repair and proper working order the installations in the dwelling-house for space heating and heating water.”

or bound to repair under the Defective Premises Act 1972 s.4(4)

“Where premises are let under a tenancy which expressly or impliedly gives the landlord the right to enter the premises to carry out any description of maintenance or repair of the premises, then, as from the time when he first is, or by notice or otherwise can put himself, in a position to exercise the right and so long as he is or can put himself in that position, he shall be treated for the purposes of subsections (1) to (3) above (but for no other purpose) as if he were under an obligation to the tenant for that description of maintenance or repair of the premises; but the landlord shall not owe the tenant any duty by virtue of this subsection in respect of any defect in the state of the premises arising from, or continuing because of, a failure to carry out an obligation expressly imposed on the tenant by the tenancy.”

What this means is when the landlord knows of the Defect and is able to rectify the defect by reference of right to enter and repair further to a tenancy agreement, he is considered to be bound to do so by this section save in circumstances where the Defect has been caused by the tenant in failing to comply with his or her obligations under the tenancy agreement,

Knowledge of the Defect by the Landlord

The duty under s.4 including Subsections DPA 1972, does not impose new repair and maintenance obligations but do superimpose a duty of care onto of the existing duty in such a way to impose a duty to include what the landlord ought to have known as opposed to what the landlord knew

S4(2) DPA 1972

“The said duty is owned if the landlord knowns (whether as a result of being notified by the tenant or otherwise) or if he ought in all the circumstances to have known of the relevant defect.”

Right of Entry

What must be considered is the wording of the tenancy agreement with respect of right of entry.

Typically, the right of entry is permitted for the purpose of inspection and carrying out repairs. If there right of entry is to enter and remove any articles left behind at the end of the tenancy agreement, there is no right of entry as this right was effective on the basis that the tenancy had ended and the property was vacant

In Dunn V Bradford MDC  the landlord had a right of entry for the purpose of executing ‘repairs or improvements’ this placed an obligation to enter in to the property and eradicate any disrepair

Matters to be addressed by the Application for an Injunction

The conditions to be satisfied were provided in the case of American Cyanamid Co v Ethicon ltd

  1. There is a serious question to be tried, this must be more than an allegation the landlord is in breach of his obligations to repair or fitness obligations
  2. Damages alone are not adequate compensation; this can be because of the serious risk to health
  3. If the injunction was not granted then the tenant would be in a position to meet the repair obligations.

For the last two criteria the balance between comparative hardships favours the Claimant

Further to Parker v Camden LBC [1986] CH 162, [1985] 17 HLR, CA at 389 it has been stated

“…an undoubted breach of covenant giving rise to actual and immediate discomfort and inconvenience and to a real risk of damage to health following from the admitted breach…”

This is known as the Parker test, and the claimant only needs to one of the criteria for an injunction to be granted. In this case, a rear staircase in danger of collapsing was a significantly serious to pass the test. Further, if just one item passed the test, the injunction should cover all the works agreed

Procedure

Complete form N16A include the following

  1. Draft Order
  2. Witness Statement from the Tenant
  3. Explaining the urgency
  4. Explain the injury or damages which will result of the works are not completed
  5. Explain why the tenant is unable to carry out the works and then bring a claim for damages
  6. Exhibit the Experts report or exhibited separate with a statement from the expert there is a real risk of harm making it clear why this is immediate

Razah Kazmi
Housing Disrepair Team
Din Solicitors