Duty of Care

The ‘duty of care’ is a legal concept and obligation an individual or organisation owes to another party in performing acts or providing services or failing to act or provide those services which, with reasonable foresight, affect or could affect others.

A person or organisation affected by those acts or omissions may have a claim in negligence if the act or failure to act by the provider of those services has caused harm or loss. A duty of care is implied in law in contractual relations and imposed in third party relations where the consequences of acts or omissions can be reasonably foreseen to affect others.

Thus a building surveyor may owe a duty of care to a purchaser even though he may be performing the service contractually for the vendor though the link may be severed by limitation or confidentiality clauses. A surveyor could foresee that dampness and timber decay may exist in an old property and he can discharge his duty of care by advising those who rely on his survey to obtain advice from a damp and timber specialist.

The damp and timber specialist then has a duty of care to take all reasonable steps and measures to investigate the property. If he inspects for example only the area highlighted by the surveyor then he may also owe a duty of care to inspect other areas. If he cannot inspect those areas because fitted carpets or furniture prevents that he must advise that it is removed and to return when it is. There must be an invitation to provide better access and an undertaking to return. In some instances the specialist may seek to limit his responsibility by limitation clauses and references to specific areas forming the subject of the inspection. In such instances words and how they are used can give rise to liability. An ‘inspection’ may indicate a ‘reactive’ act because the client has said he only wants the front wall checking (here the surveyor could advise the client of the possibility of other walls needing to be checked) whereas ‘survey’ may indicate a ‘pro-active’ act.

What is ‘reasonable’ will often be related to what is customary or outlined in established and laid down procedures. For example if a BSI standard procedure exists it is likely to set the standard against which performance is measured. Thus if a BSI standard or established practice indicates that all accessible timbers throughout the structure must be inspected for woodworm then failing to inspect all rooms could create liability. If all rooms were inspected and there were carpets which could not be readily removed in some rooms the duty of care would be discharged by offering to return to inspect the the floor when the coverings were removed.

Landlords and agents duty of care to their tenants.

A landlord owes a duty of care to his tenant and he should reasonably foresee what tenants typically do in properties and provide for accordingly. Its possible ‘duty of care’ can be extended to include the next link such examples could include, by way of illustration only, lenders who provide buy to let mortgages. Thus directly creating or empowering a landlord, may owe a duty of care to the prospective future tenants in ensuring the landlord they are lending to is competent. Solicitors and surveyors involved in the same transaction may also owe that same duty of care.

Duty of care can be discharged by foreseeing what could be the reasonably foreseeable consequences of an act or omission in providing a service and providing for those circumstances. For example, a lender could recommend that the landlord attends a landlord training course. If the landlord fails to attend the course or fails to learn anything the lender is no longer liable if the landlord’s acts or omissions then affect a tenant. In these circumstances, the lender will be able to argue he made every effort to foresee the consequences of his actions in lending the money and has done as much as possible to advise the landlord of his responsibilities.

Unless the tenancy has a fixed term of more than seven years, the landlord is responsible under the Landlord and Tenant Act 1985 for repairs to:

• • The structure and exterior of the dwelling
  • Basins, sinks, baths and other sanitary installations in the dwelling and
  • Heating and hot water installations
  • The remaining repairing provisions of this Act apply to tenancies but not to licences.

The landlord is not generally responsible for repairs arising from damage caused by the tenant, or for rebuilding the property in the case of damage by fire, flood or other inevitable accident.

Safety of gas and electrical appliances

The landlord is required by the Gas Safety (Installation and Use) Regulations 1998 to ensure that all gas appliances are maintained in good order and that an annual safety check is carried out by a registered engineer – that is an engineer who is approved under Regulation 3 of the “Gas Safety (Installation and Use) Regulations 1998.” The landlord must keep a record of the safety checks and issue it to the tenant within 28 days of each annual check. The tenant is responsible for maintaining gas appliances which he or she is entitled to take with him or her at the end of the letting.

The Landlord and Tenant Act 1985 requires the landlord to ensure the electrical installation (fixed wiring, etc) and any electrical appliances supplied (cookers, kettles, toasters, washing machines, immersion heaters, etc) are safe when the tenancy begins and that it is maintained in a safe condition throughout that tenancy.

Testing should only be undertaken by someone competent to do such work, such as a qualified electrician. If the landlord provides any electrical appliances as part of the tenancy the Electrical Equipment (Safety) Regulations 1994 require him or her to ensure the appliances are safe when first supplied. Each time the property is re-let, it will be classed as supplying to that tenant for the first time.

Fire safety of furniture and furnishings

The landlord must ensure that any furniture and furnishings he or she supplies meets the fire resistance requirements in the Furniture and Furnishings (Fire Safety) Regulations 1988, unless he or she is letting on a temporary basis while, for example, working away from home. The regulations apply if the let is for a longer period or for a series of lets, where the property is regarded primarily as a source of income rather than a home. The regulations set levels of fire resistance for domestic upholstered furniture. All new and second-hand furniture provided in accommodation that is let for the first time, or replacement furniture in existing let accommodation, must meet the fire resistance requirements unless it was made before 1950. Most furniture will have a manufacturer’s label on it saying if it meets the requirements.

Tenant’s responsibilities

Under common law, a tenant must use the property in a responsible way. He or she must take proper care of it. He or she should not damage the property and should make sure that his or her family and guests do not do so. If they do, he or she may be responsible for the damage. Under the Rent Act 1977, the Housing Act 1985 and the Housing Act 1988, the landlord can seek possession where the tenant or someone living with him or her has damaged the property. Apart from his or her duty to take care of the property, the tenant generally only has to do repairs if the terms of his or her tenancy agreement say that he or she must. He or she cannot, under the terms of the tenancy agreement, be made to do repairs for which the landlord is by law responsible.

Tenants rights to repair

A regulated tenant has the right to carry out certain improvements unless the landlord has a right to get back his or her property because he or she has served a particular sort of notice under the Rent Act 1977. A secure tenant also has the right to carry out certain improvements. However, in each case, the tenant must get written permission from the landlord who can impose conditions or refuse permission but must not do either unreasonably. If the tenant does not satisfy the reasonable conditions imposed by the landlord, he or she could be breaking his or her agreement, and the landlord might be able to regain possession.

Getting repairs done

The tenancy agreement will normally set out the rights and liabilities of the parties and may cover the procedure for getting repairs done. If the landlord fails to get repairs done after being told about them:

• • The tenant can sue the landlord in court. The court can award damages, and order repairs to be done.
  • Where the landlord has been told about the need for repairs, and failed to do them, a tenant can contact their local council who have new powers, under Part 1 of the Housing Act 2004, to carry out an assessment of the property using the new Housing, Health and Safety Rating System (HHSRS)

An industry institute  attempting to raise standards could extend the duty of care in a certain subject for example by raising awareness of a newly identified risk that should be taken into account. The new concept could improve the service so that future exclusion would adversely affect the client or beneficiaries of that service. Thus if the new idea then became an established good practice subsequent failure to apply the knowledge may be a breach of the duty of care. For example decay of floorboards is known to potentially arise from blocked underfloor air ventilation bricks this gives rise to a survey requirement to check underfloor air ventilation. Failure to check that and advise the client could give rise to future liability. But failing to recognise that cavity wall insulation may block underfloor ventilation may not necessarily give rise to liability unless it was included on a course or became a widely known fact.