David Alexander: Let common sense rule, with insurance on the side

A SCOTSWOMAN, Gillian Drysdale, has sued her landlord for a six-figure sum after breaking her back by falling down a flight of external stairs while moving into a newly-rented home in Essex.

As the judge has reserved judgement for a later date it would not be prudent for me to comment, but the incident does raise an issue– the line dividing responsibility between landlord and tenant.

This division is most commonly argued over in relation to damage and insurance but let us start with the basics. A landlord has certain minimum legal responsibilities to which he or she must adhere. First, the property must be structurally safe both inside and outside, as well as being wind and watertight. The gas, electricity and water supply must be subject to statutory checks and, if found wanting, repairs carried out, all at the landlord’s expense. The same applies to appliances such as cookers, refrigerators, etc.

After this, however, responsibility becomes personal rather than statutory. When, for example, a kitchen fire breaks out because of a faulty cooker then clearly the landlord has to make good the damage. If the fire occurred because a tenant left a chip pan unattended then he or she would be required to make good the damage.

Where water ingress occurs, usually through a burst pipe, the dividing line is simple. If the incident resulted from faulty, badly fitted or un-lagged piping then the landlord was to blame but should the tenant have vacated the property for a week or two over the Christmas period and failed to keep the property heated at a recommended minimum, then responsibility would be likely to focus on that person.

These examples – which are fairly common – emphasise the need for both parties in a property lease to be properly insured. If a landlord has a mortgage then almost certainly the lender will insist that buildings insurance is in place so that if – for example – a chimney stack is struck by lightning or a gable wall damaged by an out-of-control crane, the cost of repairs will be covered. A landlord who owns a property outright is not normally compelled to take out buildings insurance but most people would call this a very risky strategy indeed, especially as the cost of this cover is, compared to other outlays related to letting out property, relatively inexpensive.

Equally imperative is the need for a tenant to have personal contents insurance, which will cover the loss of clothing, jewellery, electrical gadgets and other personal possessions in the event of fire, water ingress or theft. Tenant losses of this type caused by a structural fault (eg masonry falling from a ceiling) may not be covered by the landlord’s building insurance. In such circumstances a tenant could, of course, sue the landlord but the cost of going to law could be greater than the value of the loss.

Having insurance does not, of course, mean that all claims will not be disputed. For example, if a tenant slips on the front steps of his rented property during particularly frosty or snowy weather, whether he, or the landlord, is responsible will be for the insurance companies to fight out.

As for “wear and tear”, applying normal common sense is the key to deciding where responsibility should lie. While supporting 100 per cent any owner claiming recompense for damage caused through wilful acts or negligence, I do wonder at the naivety (or downright unreasonableness) of some landlords who expect to find the interior of a property exactly as it was 18, 12 or even six months after being let out, especially as HMRC gives tax relief of 10 per cent per annum on all rental income to account for additional costs incurred as a result of “wear and tear”.

Of course, what really makes for a happy landlord-tenant relationship is not just the two parties adhering to the rules, but acting within the spirit of these rules.

• David Alexander is proprietor of DJ Alexander, the Edinburgh- and Glasgow-based letting and estate agency.