Landlord and tenant responsibilities
When it comes to maintaining a rented property, what are the legal responsibilities of each party: landlord, tenant and - where the property is leasehold - freeholder?
- Creating a robust tenancy agreement
- Leaseholder responsibility for repairs
- Freeholder responsibility for repairs
- Landlord and Tenant Act 1985
- What if a freeholder is not maintaining a property?
- Damp and condensation in rented homes
- What happens if a boiler is broken in a rented property?
- What happens when white goods breakdown?
- A broken toilet in a rented property and other plumbing issues
- Garden maintenance in rented homes
- Roof, gutters & drains
- Rental property pest control
- Windows in a rented home
- Replacement of locks
- Fire, flood or storm damage
Creating a robust tenancy agreement
While some aspects of maintenance and repair are legally allocated to landlords, tenants and freeholders, there isn't an exhaustive list. In some cases, responsibility can be assumed based on health and safety rules; in others, there is simply a requirement to act 'reasonably' and that can be a grey area.
As such, any tenancy agreement or lease should clearly state which party is responsible for what. Often, that will simply be confirmation of something that already exists in law but some of the responsibilities will vary from one agreement to another, depending on what the freeholder or landlord wants, or what has been negotiated for a particular let.
It's important to note any additions or amendments to a standard tenancy agreement must not breach any rights or responsibilities stated in law. So, before you sign a lease or tenancy agreement that has any non-standard terms or clauses, it's a good idea to consult a specialist legal representative, for example one that is a member of the Association of Leasehold Enfranchisement Practitioners (ALEP) to make sure it's both reasonable and legally valid.
Leaseholder responsibility for repairs
- The landlord letting a leasehold property is responsible for all maintenance and repair of the 'bricks & mortar', fixtures and services.
- The tenant renting either a leasehold or freehold property must do all they can to keep the property in good condition and report any issues to the landlord or managing agent as soon as possible.
Freeholder responsibility for repairs
Whoever has the freehold is responsible for maintaining communal areas and the exterior of the building, including the roof and grounds. They are also likely to be responsible for windows and, depending on the plumbing, things like water heaters and rubbish collection. In many cases, this responsibility is handed over to a management company, sometimes made up of all the leaseholders in a block. The cost of maintenance and repairs is met by regular service charges paid by the leaseholders, so this work is usually carried out by the landlord.
Landlord and Tenant Act 1985
For landlords, the overarching responsibility is to take every reasonable step to ensure the health and safety of their tenant, as per the original Landlord and Tenant Act 1985 and taking into account more recent relevant legislation, which includes:
- The Housing Health and Safety Rating System (HHSRS) (effective October 2006), which lists 29 specific hazards landlords must protect tenants against.
- The Deregulation Act (effective October 2015), which puts specific responsibility on landlords to respond to tenants' requests for repairs within 14 days and make those repairs within a reasonable timeframe.
- The Homes (Fitness for Human Habitation) Act 2018 (effective March 2019), which implies new terms into the tenancy agreement in England: that the dwelling (and common parts) is fit for human habitation at the start of any lease and will remain so throughout the term.
What if a freeholder is not maintaining a property?
The landlord's responsibilities to ensure the health and safety of tenants mean that where a rented property is leasehold, there is an additional onus on the letting landlord to ensure the freeholder meets their specific maintenance responsibilities. Landlords can't simply 'pass the buck'.
However, there are some things that landlord cannot do and this means there is an additional complication in meeting government rules and regulations for leasehold landlords as opposed to freeholders. For example, if there's a leak in the roof that's affecting a tenant and the freeholder is not attending to it, the landlord has to prove they are taking action against the freeholder and do what they can to make good the situation as best as possible to meet their duty of care to the tenant. Just as tenants can take their landlord to court for not making repairs, landlords can do the same with their freeholder.
Importantly, all parties should make sure they are properly insured for both accidental and deliberate damage. The key thing leasehold landlords need to be aware of is that the freeholder will normally cover buildings insurance. This doesn't mean though that as a landlord you don't need this cover. You need to check the buildings insurance includes problems caused by third parties such as tenants.
Once you understand what the freeholders building insurance does and doesn't cover, then you will still need to investigate:
- Freeholders: Buildings Insurance if more than the freeholder's cover is advised.
- Landlords: Appropriate Landlord Insurance that gives comprehensive cover for the property itself and any contents provided, as well as pubic liability.
Tenants should also consider Contents Insurance to cover their own personal possessions and any of their own furniture.
Damp and condensation in rented homes
This is one of the most common issues that can arise in a rented property. In many cases, when tenants report damp, it is 'surface mould', a black fungus that develops as a result of condensation being left to collect on surfaces. It tends to be found on bathroom ceilings, around the bottom of windows and on the walls of any room that is not ventilated for long periods of time – particularly rooms where there is a lot of moisture in the air.
The other two types of damp are rising damp, where moisture is finding its way into the property from the ground, and penetrating damp, where water is coming in because of a problem with the fabric of the property, such as cracked brickwork or missing roof tiles.
Any mould in a property must be removed as soon as possible, or you could be fined by the Local Authority. In the most serious cases - and particularly if a tenant is already suffering with any kind of condition where the lungs are compromised - mould from damp could make their condition worse, so it is not something to be taken lightly.
- From the start of the tenancy, make sure there is no sign of damp in the property.
- Ensure there is ventilation in rooms where there are high levels of moisture, primarily kitchens and bathrooms. Where it's not possible to have a window, there should certainly be an extractor fan, ideally linked to the light switch.
- Advise the tenant which rooms might be prone to condensation forming and how to ventilate properly.
- When damp is noticed or reported – even if it's because of something the tenant has done or failed to do - the landlord is responsible for removing mould and fixing the underlying problem. Remember as a landlord, if a tenant reports a problem in the property, you need to respond, in writing, within 14 days and advise what you are going to do to fix the problem – even if that is talking to the freeholder.
- Keep surfaces free of condensation, e.g. wipe down window frames and sills if water is pooling.
- Ventilate rooms where moisture has a tendency to collect, e.g. use extractor fans or open windows in the kitchen and bathroom and anywhere washing is hung to dry.
Tip for landlords: Consider using specialist anti-mould paint in kitchens and bathrooms and make sure the property is properly ventilated from day one.
What happens if a boiler is broken in a rented property?
If a boiler breaks down, it can leave tenants with no heating or hot water so it's vital the problem is fixed quickly, particularly during the winter months. The landlord needs to identify whether this is an internal problem within the flat, or something that the freeholder needs to fix.
- Either alert and chase the freeholder to fix the problem, or have a plumber or heating engineer visit the property as soon as possible if it is an internal issue.
- Ensure the boiler is either repaired or replaced. Direct Line include boiler cover as standard as part of their landlord buildings insurance.
- Report any fault with the boiler and/or hot water system as soon as possible.
Tip for tenants: Usually, the quicker an issue is noticed, the easier and cheaper it is to put right. So, the sooner you report a problem with the boiler, the sooner your home will be warm again and hot water working.
What happens when white goods breakdown?
These days, even in unfurnished rented properties, it's very common for landlords to supply certain 'white goods' – generally a fridge/freezer, washing machine and sometimes a dishwasher.
Although, legally, there is no statutory duty on landlords to repair or replace the white goods they've supplied, there is usually a clause in the tenancy agreement stating that they will. This is something that should be checked at the start of the tenancy: who is responsible for repair and is there any obligation on the landlord to replace white goods if they break down?
- Any electrical white goods must be safe, speak to your electrician, they may advise an annual PAT test.
- If the tenancy agreement states the landlord is responsible for repairs, these must be carried out in a reasonable timeframe.
- White goods should be operated according to the instruction manual and care should be taken to keep them in reasonable working order.
- If the tenancy agreement states the tenant is responsible for repairs, they must be carried out.
Tip for tenants: If an appliance breaks down and you are responsible for repair, bear in mind that if you don't fix it during the tenancy, the cost might be deducted from your deposit.
A broken toilet in a rented property and other plumbing issues
Common problems include blocked drains, a toilet cistern not refilling, faults with showers and water escaping due to a leak. Blockages could be a tenant-caused malfunction, but if the plumbing is integrated into the common parts of the building, then it could be another leaseholder or tenant that has caused the problem and it's important for landlords – and tenants – to really understand who is responsible for what when it comes to plumbing and heating issues.
- Ensure there is always a good working supply of both hot and cold water and know who to contact at the freeholder and/or their management agent in an emergency for repairs.
- Ensure there are reasonable sanitation facilities, i.e. a working toilet, shower/bathroom and a sink.
- As soon as the tenant reports an issue, ensure it is fixed as soon as possible and the tenant is kept informed or that they are aware the freeholder or their agent is responsible to fix it. You may consider giving contact details for the managing agent or landlord for emergencies when you are not available.
- Keep plugholes clear and ensure only toilet paper is put down the toilets to help avoid blockages in the drains.
- If there is a leak, turn off the mains water via the stopcock to prevent further escape of water.
- Report any issues as soon as possible.
Tip for landlords: Make sure the tenant knows where the stopcock is located and is given a number to call in case of an 'out of hours' plumbing emergency. Note that not all flats have stop cocks, but as a landlord it might be worth having one put in to save a flood and insurance claim.
Garden maintenance in rented homes
Garden maintenance is one of the things that does vary from one contract to another, so you must check your tenancy agreement or lease to see exactly what you have to do and what the freeholder is responsible for. In the majority of cases, the freeholder will be responsible for maintaining the communal areas, although as a landlord you may be required to do things like mow the lawn.
Landlord / Freeholder:
- Prune trees and shrubs.
- Maintain pathways.
- Ensure walls and fences are in good repair and don't pose any health and safety or security risks.
Roof, gutters & drains
Keeping the roof in good order is essential to help protect the fabric of the rest of the building against water damage. If gutters and drains become blocked or damaged, that also poses a risk of water damage, through flooding or penetrating damp.
Whoever holds the buildings insurance policy will be required to ensure gutters and drains are kept clear and the property is free from potential risks or hazards. This is where things can get tricky as a landlord as these are normally the responsibility of the freeholder or their managing agent and most will get the work done as it's required from an insurance perspective, but if they don't, you will have to make sure they comply with their responsibilities.
Who is responsible for roof repairs in a flat?
So, where a property is leasehold, such as a flat in a block, maintenance and repair of the roof, gutters and drains is usually the responsibility of the freeholder. If the property's freehold, it's down to the landlord.
Landlord / Freeholder:
- Make periodical checks on the exterior of the property, particularly after bad weather.
- Ensure there are no slipped or missing tiles on the roof.
- Check flashing is secure around the chimney and there are no cracks in the chimney stack.
- Check flat roofs for bubbling, cracks and other damage, and make sure they are kept clear.
- Make sure gutters are cleared periodically, especially in autumn and winter months, and check for cracks and other damage.
- Ensure drains are kept clear of leaves and other debris.
- Do not put anything down the sink or toilets that could cause blockages in the drains, such as cooking oil and non-biodegradable wipes.
- Report any damage or other issues as soon as they become apparent.
Depending on the agreement, where a building is split into two flats only (usually maisonettes) the top flat may be responsible for the roof and the ground floor flat is responsible for the foundations. In this case, each flat could be responsible for buildings insurance for their own flat. If this is the case landlords must check with the other leaseholder to make sure that they have taken out buildings insurance for their half of the building – if not and serious damage occurs they may not be able to rebuild half of a property.
Rental property pest control
Properties can be vulnerable to pests such as rats, mice and fleas, all of which needs dealing with, as they threaten not only the tenants' health and safety, but also the integrity and safety of the property itself. Among other nasty things, pests can transmit disease, cause skin and breathing irritation, damage walls, make wiring unsafe and destroy furnishings.
Where pests are coming from a neighbouring property, it is the neighbours' responsibility to deal with it. If they don't, the local council environmental health department should be contacted.
- Ensure the risk of any pests getting into the property have been minimised.
- Repair any damage that has led to pests getting in.
- Take the necessary action to get rid of any infestations, e.g. call a pest control company.
- Clean regularly and don't do anything that could attract pests, such as leaving food or rubbish out.
- Report any issue to the landlord or managing agent as soon as possible, even if it's just a suspicion.
Windows in a rented home
Generally speaking, the tenant is responsible for the interior of the property and the freeholder the exterior. However, the responsibility for window cleaning should be clarified in the tenancy agreement, so do check.
Landlord / Freeholder:
- Keep the window structure in good condition, e.g. making sure frames are not rotten and seals are watertight.
- If a window is broken or cracked, it must be repaired as soon as possible, as it poses a security risk to the tenant and could lead to further damage to the property from the elements.
- Arrange for periodical exterior window cleaning.
- As part of maintaining the interior of the property, the windows should be cleaned periodically.
- Wipe condensation away from windows and sills.
- Report any damage and, if it was your fault, arrange for repair.
Tip for tenants: If you damage or break a window, report it to the landlord or managing agent as it's their responsibility to raise this with the freeholder and get it fixed, normally under the freeholder's buildings insurance.
Replacement of locks
If a property is burgled, locks usually need replacing, either because they were damaged to gain entry or because the security of keys was compromised. And sometimes tenants who lock themselves out end up forcing entry and damaging the lock. Other times, a tenant may simply lose their keys.
The landlords will be responsible for the locks to a property, but if keys to the property or to the entrance of the flats are lost, the tenant will be responsible for the cost of replacing them. As a tenant you will need to alert the landlord or managing agent and they will organise a replacement.
- Will be responsible for communal locks and security systems. If there are any problems, as a landlord you are required to fix them on behalf of the tenant and liaise with the freeholder or their managing agent.
- As part of the duty to keep tenants safe, if a property is burgled and/or the locks are damaged by an unknown third party, the landlord must replace the locks. Make sure you keep a spare key to avoid the need to replace the lock.
- Report any issue to the landlord or managing agent as soon as possible.
- Where it's their own fault, the tenant is responsible for repairing or replacing damaged locks.
Fire, flood or storm damage
Fires, floods and storms are the things that have the potential to cause the most damage to a property and, given the costs that could be involved, all of them that should be covered by a comprehensive insurance policy.
- Arrange for the immediate problem to be attended to by contacting the insurance provider and/or emergency contractors.
- Ensure damage is repaired.
- Depending on the tenancy agreement and level of insurance, find alternative accommodation for tenants if the property is uninhabitable while repairs are carried out.
- Report any fire or flood, either:
- by calling the landlord or managing agent, or
- by calling the emergency services.
- Take any reasonable steps to minimise the damage, e.g. if there is an escape of water, locate the stopcock and turn off mains water.
- Report damage if you have your own contents insurance provider as soon as possible.
Tip for landlords: Depending on the level of cover provided by the freeholder's buildings insurance, consider taking out Landlord Emergency cover for insured emergencies. There's a 24-hr claim line and we'll arrange for an approved contractor to secure the property and prevent damage, or further damage, taking care of the call-out charge, labour costs and any necessary materials, up to £1,500 (incl. VAT). The claim line number and details should be given to the tenant so they can call on your behalf if they can't get hold of you or your managing agent.
Landlords of leasehold properties can be placed in a tricky situation when it comes to maintenance and repairs for flats or other leasehold properties. Before creating a tenancy agreement, it is important to understand what cover, if any, is provided for buildings insurance for tenanted leasehold properties. Then you need to make sure you have the right cover in place and your own insurance company is aware of the buildings insurance cover provided (or not) by the freeholder.
Secondly you need to be clear on what the freeholder is responsible for from a repair and maintenance perspective and what, as a landlord, you need to do. It is wise, prior to buying a leasehold property, to find out as much about the freeholder and/or their managing agent as possible. If they are poor at taking responsibility for repairs or maintenance, and if the property's heating and hot water is reliant on the freeholder to fix, this could cause you many problems with the tenant, through no fault of your own.
Before you create a tenancy agreement for a leasehold property, make sure it reflects your rights and responsibilities as a leasehold property owner first and that the tenant is clear on who is responsible for which repairs and maintenance.
Most of the time, the landlord is responsible for keeping things within the property in good condition and working properly. However, tenants need to know if there is a third-party freeholder or managing agent who may need to be relied upon to fix some of the maintenance and repairs on the property.