Mind your step: When is a hazardous staircase not a defective staircase?

The Court of Appeal recently handed down a judgment which serves as an important reminder that a landlord’s duty to repair does not extend to improving a property so as to make it safe. But what other implications does the decision have for both residential and commercial landlords alike? Steven Conway shares his views.

Case facts

The case of Sternbaum v Dhesi [2016] EWCA Civ 155 revolved around a Victorian property that was let out as premises to the claimant. The property contained a rear staircase which had no bannister or handrail fitted but a post in the wall suggested that a bannister may have been removed at some stage in the building’s history.

On 25 May 2009 the claimant slipped and fell as she walked up the stairs. Subsequently, she sued the landlord in negligence and for breach of statutory duty.

The claimant argued that without a handrail, the premises were in a dangerous condition and that had there been a handrail the accident would not have occurred.

By the time the case reached trial the issues had been narrowed and the claim was pursued solely under section 4 of the Defective Premises Act 1972.

The Defective Premises Act 1972

The Defective Premises Act 1972 was introduced with the aim of establishing liability for injury or damage caused to someone through faults in the state of a premises.

Before the act was passed, builders who constructed unsafe properties were largely protected against prosecution. Meanwhile landlords who rented properties where a non-tenant was injured due to a defective and dangerous building could not be sued.

The section of The Defective Premises Act that is particularly relevant to this case is section 4. Where premises are let under a tenancy which puts an obligation for the maintenance or repair of the premises on the landlord, they owe a duty to take such care as is reasonable in all the circumstances, to all persons (who might reasonably be expected to be affected by defects in the state of the premises) to see that they are reasonably safe from personal injury or from damage to their property caused by a relevant defect.

A “relevant defect” is defined in the Act as a defect in the state of the premises existing at or after the material time and arising from, or continuing because of, an act or omission by the landlord which constitutes, or would if he had had notice of the defect, have constituted a failure by him to carry out his obligation to the tenant for the maintenance or repair of the premises.

In the Sterbaum v Dhesi trial, the judge noted the decision in Alker v Collingwood Housing Association [2007] 1 WLR 2230 where the Court of Appeal stated “there is no general duty on a landlord to make the premises safe for the tenant” and as such there was no obligation to fit a handrail, removed before the tenancy began, so as to make the staircase safe and consequently the claimant’s case failed.

In the Court of Appeal

Giving the lead judgment, Lady Justice Hallett had little doubt that given the narrowness of the tread and the steepness of the flight of steps that without a handrail, the staircase was a hazard. However, unsafe as it may have been, there was nothing about it by which you could properly describe it as being in disrepair.

She also found that there was no handrail present at the relevant time and to place a landlord under an obligation to fit a handrail in these circumstances would amount to placing him under an obligation to improve the premises or make them safe, which would, in fact, go beyond the reach of the landlord’s covenant.

I’m a landlord, what does this mean for me?

As a landlord, this decision should not simply be seen as a charter for you to not improve your properties so as to make them safe for tenants. It does however, provide some comfort and confirmation that you are under no duty as such to improve a property under a lease. It also provides a reminder that in defending claims under the Defective Premises Act that there are limitations on the extent of the landlord’s duty and that these cases can indeed be defended. In particular, it is worth remembering that even where premises are let which have features which could be described as hazardous, this does not necessarily amount to a relevant defect for the purposes of the Act.

What about commercial properties?

Under a commercial lease where repairs are the responsibility of the tenant, the landlord may be able to avoid liability for injuries as a result of any defects in the property. However commercial property landlords can still be held legally responsible in the following instances:

1. If the lease contains provisions such as a requirement that the landlord is responsible for maintaining or repairing the premises. Here the duty will arise if the landlord is put on notice of a defect, or ought to have known of the relevant defect.
2. If there is an express or implied right in the lease which allows the landlord to enter the premises to carry out maintenance or repair.
3. Landlords can also be held liable for injuries caused by defects due to changes made by their tenants, even if these changes are in breach of the terms of the lease.

The decision is a reminder to all landlords, and particularly commercial landlords that they should ensure that they are aware of any clauses in their agreements regarding management, maintenance and repairing responsibilities. As a further precaution, landlords should carry out regular inspections of their properties where appropriate. Finally, it is crucial that, as a landlord, your insurance policy includes Property Owners’ Liability cover against death or injury to individuals.

This article was written for and first published by Local Government Lawyer.