Residential Landlords and Tenants – Who is Responsible for Repairs?

The repairing obligations of the parties to a residential lease or tenancy agreement is something that can frequently cause dispute.

When ascertaining who is responsible for repairing or maintaining, the first place one must look is the agreement. Whether that is a short-term private tenancy agreement (such as a student let) or a long-term lease under which a dwelling has been sold, the terms of the agreement will almost always determine where responsibility lies. Generally, the longer the agreement is to last, the more responsibility the tenant will have; a short-term let will usually require the landlord to carry out most repairs, but a long lease is likely to place the responsibility largely on the tenant.

If an agreement does not detail the repairing obligations in full (or is silent on the issue), one must look to legislation. The Landlord and Tenant Law Amendment (Ireland) Act 1860 provides that a tenant is responsible for keeping a dwelling in good repair.

This is qualified by the Private Tenancies (Northern Ireland) Order 2006 (the “Order”). Articles 6 – 14 of the Order imply terms into tenancy agreements if they are silent. These implied terms apply to tenancies made following the commencement of the Order and to any rent-controlled tenancy in place before commencement. Some of the key implied terms are as follows:

• Article 7: The Landlord is responsible for repairing the structure, interior, exterior, appliances, and fixtures and fittings that they have provided.
• Article 8: The Tenant has a duty to take proper care of the premises.
• Article 11: The standard of repair required will depend on the age, character, and prospective life of the premises. The Landlord must also have actual knowledge of need for a particular repair for the obligation under article 7 to apply.

When reviewing or drafting an agreement/lease there are a few common issues and clauses that Landlords and Tenants should be live to:

• Precise drafting of the agreement is crucial. It is important to specify what parts of the premises (and its contents) that the parties are responsible for, particularly if article 7 of the Order is not to apply in full. In long leases, particularly with apartments, it is important to precisely draft the description of the premises. If the tenant is to be responsible for repairing their premises (as defined in the lease), the definition must be precise as to the extent of their premises. For example, a ground floor tenant’s premises must be described so that it does not include any part of the first-floor tenant’s premises. That will involve specifying the joists, walls, floors etc. that each tenant is to hold. It will also require detailing what parts the landlord is to retain responsibility for such as the common areas (this is implied under article 9 of the Order) or shared structures like the roof.
• In the event of one party failing to uphold its repairing obligations, the agreement should state what recourse the other party has. Typically, a landlord will reserve the right for themselves to enter onto the premises to inspect the state of repair. They may also reserve themselves the right to carry out repairs (should the tenant fail to repair after being given the opportunity to) and to recover the costs from the tenant. However, the agreement must explicitly provide for these clauses. Should the landlord fail to uphold their obligations, the tenant may pursue an action for breach of covenant or, if one of the Order’s implied terms applies, then the tenant may contact the local council to enforce the term.
• Tenants should be aware of their rights should a neighbour fail to keep their premises in repair and consequently damages the tenant’s premises. The tenant can always reach out to their mutual landlord to enforce the neighbour’s repair obligation. The tenant’s lease may also state that they have the benefit of certain covenants contained in the neighbour’s lease which could allow the tenant to take direct action against the neighbour.

The law on private tenancies is a topical issue and thus landlords and tenants should be wary about any changes in legislation when entering into agreements. In particular, the phased enactment of the Private Tenancies Act (Northern Ireland) 2022 is something to be aware of given its potential ramifications if fully enacted.

Ultimately, in the event of a dispute, it is the agreement itself that should be the first port of call for both parties hence it is important they are drafted diligently.

If you would like further information, please contact Dylan Toner or another member of the Real Estate team.

*This information is for guidance purposes only and does not constitute, nor should be regarded, as a substitute for taking legal advice that is tailored to your circumstances.