Graham Halsall looks at a freeholder’s duty of care to visitors to a property and how this can differ depending on the state of the premises.
The recent case of Dodd v Raebarn Estates Ltd and others  considered the extent of a freeholder’s duty of care to visitors to the premises. The case highlighted the difference between ‘defective’ premises and premises in a state of ‘disrepair’ in the context of the freeholder’s duty of care to the safety of people visiting the property.
Defective Premises Act 1972
Under the Defective Premises Act 1972 (DPA) a landlord has a duty of care to see that people on the premises are reasonably safe from personal injury or from damage to their property caused by a defect to the premises. This duty of care arises where the landlord is obliged under the tenancy to either maintain or repair the premises and has the right to enter the premises and carry out such maintenance or repairs.
Raebarn Estates were the freeholder of a block of flats. They had leased part of the block to a developer (the head lessee) who had then leased out the flats under long leases. Mr Dodd was visiting one of the flat owners when, tragically, he fell down a staircase and suffered major head injuries, from which he later died. Contrary to the redevelopment plans and in breach of building regulations, this steep staircase had been built without a handrail.
Mr Dodd’s widow brought claims against Raebarn (as the freeholder of the building), the developer (as the head lessee of part) and the flat owner (as the sub-lessee). She claimed, amongst other things, that Raebarn were in breach of the DPA because the safety failings of the staircase
Her claim against the freeholder was dismissed, a decision that was upheld on appeal.
In their judgment, the Court emphasised that Raebarn’s right to enter the premises was limited to one of rectifying breaches of the head lessee’s obligation to repair. The Court held that an obligation to repair did not arise unless there was evidence of disrepair. Although the staircase was unsafe and had resulted in a fatality, this was a result of the lack of a handrail rather than the failure of the freeholder to repair a damaged handrail. A duty for repair or maintenance did not amount to a duty to remedy a defect or make the premises safe, i.e. by installing a handrail.
In this case, the Court applied well settled principles of landlord and tenant law that before an obligation to repair can “bite”, the property must be in disrepair. This means that the physical condition of the property must have deteriorated from a previous state of repair.
Even though the staircase was built in breach of building regulations and led to the death of Mr Dodd, this was not enough to amount to a breach of a repairing covenant on the part of the landlord.
The decision appears harsh and appears to be inconsistent with the approaches adopted in other recent cases on the extent of the landlord’s duty under the DPA. That said, it serves as a reminder to building owners that they may need to take positive steps to rectify defective premises even in circumstances where the tenant has primary responsibility.
Graham Halsall is a Partner in the Dispute Resolution Team at Morrisons and has considerable experience with issues of this nature. Should you have any questions please feel free to contact Graham Halsall by phone 01737 854 577 or by email [email protected]