The High-Set Window and the Reluctant Landlord
You manage a third-floor flat let to a tenant on an AST. The lounge has a single large sash window that opens to a 12 cm gap before the sash cord jams. The tenant reports their two-year-old can reach the sill and has been pushing at the gap. The landlord says the window 'has been like that for fifteen years' and refuses to spend money, arguing the tenant should simply keep the child out of the room. The tenancy is four months into a twelve-month term. The tenant has emailed twice, then phoned in distress, saying they will withhold rent until it is fixed. There is no clause in the tenancy about repairs beyond the standard repairing obligations, and no record of a pre-tenancy risk assessment for the property.
1. Identify the legal and safety issues raised by the window, and explain what your immediate response to the landlord should be.
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The window creates a foreseeable risk of a child falling from height. Under the Housing Act 2004 Housing Health and Safety Rating System, an opening restrictor that fails to restrict, or a window that opens onto a fall, falls under the 'falls from height' hazard. A 12 cm gap is enough for a small child to pass a limb or head through and potentially fall. As the managing agent you have a duty to act on a known hazard once notified.
Your immediate response to the landlord should:
- Record the report and the date it was received.
- Explain that this is a Category 1 or Category 2 hazard under HHSRS and that the local authority can serve an improvement notice or take emergency action, with costs recoverable from the landlord.
- Note that 'it has been like that for years' is not a defence; the duty is ongoing.
- Recommend a window restrictor or a replacement sash as the minimum fix, and offer to arrange a contractor.
- Confirm in writing that if the landlord refuses, you will escalate internally and may need to notify the tenant of their right to complain to the local authority.
2. The tenant threatens to withhold rent. Advise the tenant in writing on their position, and explain the risk to the landlord if the matter is not resolved.
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The tenant should be advised that withholding rent is a breach of the tenancy and could lead to possession proceedings, so it is not the recommended route. Instead, the tenant should:
- Put the repair request in writing and keep a record.
- Use the landlord's complaints procedure, then the relevant redress scheme (for example, a property redress scheme) if the agent is a member.
- Report the hazard to the local authority's environmental health team, who can inspect under HHSRS.
- Consider the 'fitness for human habitation' implied term under the Homes (Fitness for Human Habitation) Act 2018, which may allow a claim in the county court without withholding rent.
Risk to the landlord: an improvement notice, prohibition order, or emergency remedial action with a costs charge; potential prosecution for failure to comply; and possible civil claim by the tenant. The agent should document all advice given to protect against a later allegation of negligence.
3. What records should you create now, and why do they matter if the matter escalates?
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Create and retain:
- A dated hazard log entry describing the window, the 12 cm gap, the child's access, and the tenant's reports.
- Copies of all correspondence with the landlord and tenant, including the landlord's refusal.
- A written recommendation to the landlord with cost estimates and a deadline for response.
- A note of any contractor inspection and photographs.
- A record of the advice given to the tenant about withholding rent and about their complaint routes.
These records matter because they evidence that the agent identified the hazard, advised the landlord, and took reasonable steps. If the local authority or a court later considers liability, the paper trail distinguishes an agent who acted from one who ignored a known risk. They also support any defence that the landlord, not the agent, made the decision to refuse the repair.