Tempest Tossed?

Does the landlord’s repairing duty under Section 11 Landlord and Tenant Act 1985 extend to damage by fire, flood or tempest?

LB Hammersmith and Fulham v Carty is a County Court judgment reported on Hardwicke Chamber’s site which raises some interesting issues on the interpretation of Section 11(2)(b) of LTA 1985. This provides:

(2) The covenant implied by subsection (1) (“the lessor’s repairing covenant”) shall not be construed as requiring the lessor—
(a) [...]
(b) to rebuild or reinstate the premises in the case of destruction or damage by fire, or by tempest, flood or other inevitable accident, or
(c) [...]

Ms C was a secure tenant of H&F (whose tenancy agreement repairing duties were limited to s.11 specifically). There was a fire in April 2010, which was started in a neighbouring flat through arson by the tenant. The fire gutted that flat and did considerable damage to the walls, ceilings and electrics in the common area outside the flats. There was smoke damage to Ms C’s flat, but the only other particular issue was a smoke damaged air vent that required replacement. Ms C also complained about a lingering smell of smoke.

After the fire Ms C had moved out. Although repairs and temporary lighting were fitted in the communal part within some weeks, Ms C did not move back in, despite H&F insisting the property was fit for use. It appears she also stopped paying rent, or some rent.

H&F brought a claim for possession, Ms C counterclaimed for disrepair. The principle issue was the smoke damaged air vent.

H&F argued that as the fire had not been caused by disrepair or H&F’s actions, the resulting damage to common parts, which was accepted to be disrepair fell under s.11(2)(b) and that therefore no liability arose to Ms C.

It isn’t clear if Ms C was represented – I suspect not, but any information welcomed – but the District Judge apparently agreed with H&F and found that there was no liability for the fire related disrepair.

The Hardwicke note suggests that this argument could be extended to, for example, cases of water penetration between flats where the landlord is not primarily liable for the escape of water in the first place. It suggests that it would be a defence to a claim for the damage to the claimant’s flat (damaged plaster, walls, ceiling, electrics etc.) that the damage was the result of a ‘flood’ so no liability on the landlord’s part to rebuild or reinstate under s.11(2)(b).

I have doubts about this, beginning with the viability of describing a persistent, or intermittent but long term, leak as a ‘flood’…

noun
1 an overflow of a large amount of water beyond its normal limits, especially over what is normally dry land: [Source]

or

a : a rising and overflowing of a body of water especially onto normally dry land; also : a condition of overflowing [source]

It is also rare for water penetration to be due to the other tenant, or rather be due to something that does not fall under the landlord’s repairing obligation in that flat. Leaseholders are a different issue – but then a nuisance claim may depend on the landlord’s reserved right of entry to carry out repairs, if any (a post for another time).

So, if this argument is to have any role, it would arguably only be in cases of a one off, large scale flooding, caused wholly by the other tenant, or, as in this case, fire.

And then there is a fundamental question of whether the argument is right overall in its application to disrepair. Section 2(b) concerns liability to ‘rebuild or reinstate the premises’, (rather oddly as the rest of s.11, including (1) and (1A), refers to the ‘dwelling house’ and/or ‘building’). But arguably ‘rebuild or reinstate the premises’ has a different meaning to ‘keep in repair and proper working order’ the structure, exterior, water, gas, electricity, sanitation heating etc. (S.1 and s.1A), whether fire, flood or indeed tempest is involved. Destruction of the premises, not disrepair, would seem to be the target, otherwise s.11(1) has a very odd set of exclusions. ‘Reinstate’ is not used elsewhere in s.11 at all, so is arguably not synonymous with ‘repair’ – which was the argument made in this case.

But this might well be an argument we see played out in the future. It will no doubt be used by landlords.

Posted in Assured Shorthold tenancy, assured-tenancy, Disrepair, FLW case note, Housing law - All, Nuisance, secure-tenancy. RSS feed for this post and comments.

About

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +

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