Tag Archive for 'disrepair'

Hey, you asked…

Published
by
NL
on 28 September 2008
in Housing law
. 8 Comments

Another in Nearly Legal’s sporadic attempts at being helpful to passing internet searchers. All the questions are genuine searches from the logs, including the rather puzzling ‘crinoline flint’, which perhaps gives more insight into the searcher than one might want. As ever, none of what follows constitutes legal advice and you should always consult a specialist solicitor before taking any steps.

So, by theme:
1. Disrepair
disrepair protocol costs
…are part of a claim. May I direct you to our post on Birmingham v Lee on recoverability of protocol costs where works are done pre-issue.

living in unihabitable property and the consequences for landlords
I would imagine a pretty substantial disrepair claim against them, depending on why the property is supposedly uninhabitable.

appeal housing flood
Appeal? Why appeal?  Was there a claim? Floods are tricky things, though. Liability depends on the source and the cause. Landlords will usually be liable for the water supply and fittings in the property, but not where another tenant has caused the flood. The other tenant is then liable. But it is worth considering that even if the flood was caused by an upstairs tenant, if it has done damage to the structure of your property, the landlord is liable for that disrepair.

mice infestation qualifies as disrepair
By and large, no. An infestation of mice may count as nuisance, if they can be shown to be accessing the property from an area under the landlord’s control (common areas, service ducts etc.), which effectively rules out houses, or ground floor flats. An infestation might be part of a disrepair claim as a consequence of disrepair - if entry is gained through disrepair. Otherwise, nuisance is the best bet.

can i withhold rent disrepair
Only in very limited circumstances: where the landlord has been notified of the works required for which the landlord is responsible; failed to do them in a reasonable time; has been notified by the tenant that unless the works are done by a specified date, the tenant will do them, the landlord has been provided with an estimate of the costs and the tenant has notified the landlord that the costs will be deducted from the rent. The tenant can then deduct those costs and only those costs from the rent. Was that what you had in mind? I thought not. Otherwise, you cannot withhold rent and may face possession proceedings if you do. Compensation for disrepair is virtually always less than the rent in any event.

bed bugs tenancy agreement london
One of many, many searches on bed bugs. The trouble is that it is very unlikely that the landlord will be liable, or responsible for stopping the infestation. It is hard to claim nuisance, as it is very difficult to establish that the source of the infestation is an area under the landlord’s control. It will be a very rare tenancy agreement that would make the landlord responsible for stopping an infestation. For these reasons, it is also not a justification for breaking a tenancy agreement.

2. Possession
can the council in ealing evict me from my secured tenancy 3 bedroom house if my last son moves out
Probably not. Possession claims for under occupation can only be brought in very limited circumstances, where the tenant is a successor (but not to their spouse or civil partner) and notice was served between 6 and 12 months after the succession. Suitable alternative accommodation has to be available and it has to be reasonable for the Court to make the order. Note that this applies to secure tenancies only. Those with assured tenancies (eg, most housing association tenancies) can face possession proceedings if they refuse suitable alternative accommodation and suitable accommodation is available at the possession hearing.

staying a warrant mandatory ground
No. Can’t do it.

what happens when a tolerated trespasser clears arrears and court cost
At the moment, nothing, except , by and large, they lose the ability to apply to the court to revive the tenancy. Equally, the landlord can’t enforce the possession order. There is no new tenancy unless the landlord decides to give one. These are what has become known as entrenched trespassers. This should change when some sections of the Housing & Regeneration Act 2008 come into force. Trespassers should get a ‘replacement’ tenancy automatically. Much more on this when it happens, which should be in April 2009. The whole thing remains messy - get specialist advice and bring your possession order with you (see the comments below).

3. Homelessness issues
caselaw ending interim accommodation with reasonable notice
You’ll be wanting Conville v London Borough of Richmond-Upon-Thames [2006] EWCA Civ 718.

legal rights when 1 party wants out of a mortgage leaving 1 person homeless
A joint mortgage? The other person can’t just get out of the mortgage. They can stop paying, which, although it would leave a claim against them, obviously makes the situation practically difficult. In a joint mortgage you are each liable for any and all of the mortgage payments. Can you end up losing the property? Yes - so you should get advice on your position as soon as possible, as it can be complex.

powerpoint on homelessness law uk
A bit lazy, no?

4. Funding
small claims defence southwark public funding
Very doubtful. Public funding is not available for small claims, with very limited exceptions.

how much legal aid is released to solicitors dealing with housing issues
Err. Do you mean for a case - then it depends. Or do you mean what part of the civil legal aid budget this year goes to housing matters? That I don’t know, off hand. In any case, legal aid is not ‘released’ to solicitors - they don’t get the money ahead of doing the work (in fact usually not for quite some time afterwards), and the LSC sets strict limits on the amount of work that can be done. The solicitor has to apply for and justify each increase in the limit. Then their bill is assessed at the end.

public funding cost of works disrepair
In order to be a potential fast track matter and so get public funding, the rule is that where there are works required either the cost of works or the likely damages must be over £1000. So if the damages are over £1000, the only requirement is that there are works outstanding, the works do not have to be over £1000 in cost.

Views and news from Hlpa meeting

Published
by
NL
on 17 September 2008
in Housing law
. 2 Comments

The Hlpa meeting tonight (17/9/08) was a particularly interesting one, on the topic of disrepair. Talks were from Mel Cairns, Andrew Brookes of Anthony Gold and Marina Sergides of Garden Court.

Among the end of meeting news items were:

  • The current intent is that the main body of the Housing & Regeneration Act, including the tolerated trespasser provisions, will come into force on 6 April 2009.
  • New Housing Benefit regs coming into force on 6 October 2008 mean that HB backdating claims can only be made for 6 months (for those of working age) and 3 months (for pensioners). Not good news.

There were a few surprises for me arising out of discussions of the talks.

One was that relatively few people have much experience of CFA funding for disrepair claims, despite the effect of the new regulations in easing the requirements and therefore subsequent costs challenges to the validity of the CFA. Given the large proportion of social tenants who will not be leigible for legal aid, I would have thought that, as Andrew Brookes suggested, this was a clear option for funding claims that the tenants otherwise have no way of bringing.

The other surprise was that basically no-one in London/the SE is bringing EPA 1990 private prosecutions anymore. The history, which was news to me, was that there were great swathes of prosections in the 1980s, mostly in east London, and that a batch process was in place, which still operates in Birmingham, apparently. But recent experience seems to be that they are difficult, massively unpredictable in the Magistrates Court, and prone to unexpected detonations or collapses. I’ve not done an EPA, though I’ve been slightly involved in someone else’s. I can appreciate that focussing on the Criminal standard of proof is a hefty adjustment for civil litigators. I can also appreciate that it an be difficult presenting the Magistrates, or a DJ in the Mags, with an unusual and unfamiliar prosecution, but it may be a chicken and egg thing. More solicitors and Counsel wth experience of EPAs and more Magistrates Courts used to dealing with them could bring a different approach.

Marina Sergides did a useful run down of recent(ish) cases. Most, I am pleased to say, were previously reported on Nearly Legal. Some were unreported (anywhere) and I shall shamelessly purloin those, with attribution, for notes over the next few days.

Levels of damages were a topic at Hlpa and, as I have noted before, we seem to be in something of a state of stasis (or even a real terms fall on these), partly due the lack of higher court cases, and for that reason, I’m all for some upward pressure. A commentor at Hlpa suggested that he was seeing settlement figures routinely higher than many recent reported County Court cases. I could probably say the same, but even non-binding County Court cases aren’t helpful in making the argument.

Retrospective CFAs

Published
by
NL
on 4 August 2008
in Housing law
. 0 Comments

Forde v Birmingham City Council [2008] EWHC 90105 (Costs)

In brief, where a firm had asked a client to sign a second CFA for a disrepair claim, at a time when it appeared that the first CFA might be found unenforceable, and the second CFA provided for a success fee where the first one didn’t:

a) was the second CFA unenforceable because it concerns matters contained in the first CFA?

b) was the second CFA unenforceable because it is retrospective?

c) what period is covered by the second CFA?

d) is the success fee retrospective?

e) when a second CFA is signed at a time when a firm offer is on the table, what is the appropriate success fee?

f) Does the first CFA continue to be valid if the second is unenforceable.

Also in brief, the answers are as follows:

a) No

b) No

c) The period from the signing of the first CFA (depending on the second CFA’s terms

d) Where the first CFA did not provide for a success fee, no. The success fee would only apply from the date service of a second N251.  But if the second CFA had been signed pre-issue of claim:

That leaves open the question of what would have happened had CFA II been signed before issue and had the litigation been settled without proceedings. Section 19.2 Costs Practice Direction states at (3) that there is no requirement in the PD for the provision of information about funding arrangements before the commencement of proceedings. No one suggested that the pre-action protocol required this to be done in the present case.  It follows that a curious situation would have arisen  had McGrath settled the case after  signing CFA II  but before  issue because the time for serving Form N251 would not have been reached. It would seem that in those circumstances a retrospective success fee would have been recoverable, but because, in the event, proceedings were issued  and no notice  under CPR 44.15 was given, McGrath’s claim for a success fee has been lost.  

e) In this case, the second CFA had provided a sliding scale of success fee: 50% if the claim concludes before the issue of proceedings, 75% before commencement of trial and 100% if concluded at trial. Birmingham had argued that the certainty of success at the time of signing was such that the appropriate level was nil. The Court was persuaded that the claim was relatively free of risk at the time of CFA 2. Using the Begum baseline of a 15% success fee for near certainty, the Court said:

Using the ready reckoner, I consider that a fair assessment of the risks if the claim had concluded before the issue of proceedings, were that there was a 90% chance of winning, giving a success fee of 10%.    I am not persuaded that a significantly higher sum is warranted just because proceedings were issued. Having failed to settle during the protocol period, limited grounds might be advanced for saying that the Council must have considered that the prospects of a successful defence were much higher than 43%, (a 57% chance of winning would reflect a 75% success fee under the ready reckoner). In my judgment, however, the likelihood of  Miss Forde losing would still have been slim. Left to me, I would assess prospects of winning up to trial at 83% giving a success fee of 20%.  Had the matter actually concluded at trial, the position would have been different as McGrath could then have argued with justification that the Council had  clearly considered it would win, so the success fee should be 100% reflecting 50/50 prospects of success.   

f) The first CFA cannot continue as a ‘fall back’ for the second. CFA 1 did not survive the signing of the second.

The case also contains significant discussion on Regulation 4 Conditional Fee Agreement Regulations (2000), applicable to CFAs signed before October 2005, on advice to clients on alternative funding and specifically public funding. The details are specific to the facts, but worth a look for re-examining any CFAs of that vintage. See paras 144-155, amongst others.

Disrepair - One bite at the cherry

Published
by
NL
on 2 August 2008
in Housing law
. 0 Comments

Onwuama v Ealing LBC [2008] EWHC 1704 (QB).

The Claimant made a claim for s.11 disrepair (in person), alleging dampness and electrical problems. No expert evidence was put forward as to the cause of dampness. The claim largely failed as the Judge found the most likely cause was condensation rather than structural issues or rising damp.

The Claimant sought permission to appeal that judgment, with an expert report suggesting that lack of a damp-proof membrane was the cause of the dampness.

Permission was refused, but before that decision, the Claimant made a second claim on the basis of the damp and some other matters and including the same expert report as evidence. The Court found that the Claimant was estopped per rem judicatam from claiming that the cause of the disrepair was anything other than condensation.

The duty under Section 11 of the Landlord and tenant Act 1985 is of course a continuing duty. To succeed in a second action the Claimant must prove that the cause of the damp (which is the same damp or worse damp as was alleged in the first action) is structural. That issue has already been determined against the Claimant. In other words it has been determined that the damp is not disrepair within Section 11, and Section 11 does not apply to the damp in these premises.

The Claimant appealed on the basis that the dampness was a continuing breach of s.11 and to hold that this was res judicata was against the will of Parliament in s.11 Landlord and Tenant Act 1985 in imposing a duty upon landlords.

The Court of Appeal held that the principle of finality in litigation is in the public interest. A continuing duty under the L&T 1985 did not escape that principle:

It was held that that issue had already been determined against her and that the Claimant was estopped from reopening a factual issue which had been determined against her. I do not regard that as frustrating the will of the Parliament. There is nothing in the Landlord and Tenant Act which provides that a tenant may have multiple attempts to prove a breach of duty by the landlord, contrary to the principles of res judicata .

To the extent that the Claimant sought to rely on dampness existing prior to the first judgment, her claim was res judicata.

It was further submitted that “if the judgment were to stand the Claimant could never require the landlord to remedy dampness in the walls or floors of the premises no matter how caused. The cause of damp regardless of evidence to the contrary would always be deemed to be condensation.” This submission fails to understand the decision of HHJ Edwards. If there develops some new cause of damp in the flat caused by a want of repair then the Claimant can of course allege and prove that. What she cannot do is allege that the cause of the damp which was the subject of complaint in the first action was other than as found by the HHJ Nathan.

But any fresh damp must have a new cause as the issue in the first judgment was the cause of damp, not the existence of the damp. In the second claim, it was the same damp - as indicated by the same expert report being used for both permission to appeal and second claim - and what was contested was the cause. The cause was therefore res judicata.

Harsh, one might think, particularly as the Claimant was a litigant in person in the first claim. But probably right. The claim in disrepair is not for the effects of disrepair per se, but for the specific failure to repair, from which the effects flow. Once a judgment has been made on the specific cause, that is that.

However, one wonders if some canny pleading and limitation of periods of claim might have avoided this situation. The permission to appeal application, with expert report probably scotched this second claim, but it could perhaps have gone otherwise.

Disrepair protocol costs

Published
by
NL
on 31 July 2008
in Housing law
. 6 Comments

Birmingham City Council v Lee [2008] EWCA Civ 891 concerns claimant’s costs incurred while following the disrepair pre-action protocol.

It is not uncommon for a landlord to do repairs after an early notification letter, or letter of claim, but pre issue (not that common, but not uncommon). This leaves the claim as for damages only. Where repairs are outstanding, the small claims limit is £1000 in damages or cost of works. But a damages only claim hits the usual £5000 limit. There are the small claims unavailability of costs consequences, and there is no public funding for small claims. Thus, doing the repairs would often kill a disrepair claim. In the meantime, costs would have been racked up following the protocol steps - which are necessary, with a potential costs penalty for not doing so.

Lee decides that, given the nature of the protocol, a claim begins at the start of the protocol steps, not at the commencement of litigation. Pursuant to CPR 44.9(2), the Court has the power to make a costs order for pre-allocation period, unrestrained by the limitations of whatever track the claim is allocated to.

Where a claim at pre-action protocol stage would be a fast-track claim (works not done), the Court can make an order that the Claimant have their costs, up to the date of the works being done, at the fast-track rate. This is still subject to establishing notice, liability etc., so will likely be ordered as costs in the cause.

The Claimant should apply for such a costs order with allocation questionnaires.

Now, although this leaves the claim ongoing as a small claim, with the remaining costs issues that this implies, it does mean that:

a) the principle is established for the purposes of negotiating costs in settlements, even pre-issue. There is the stick of a threat to issue and seek the costs order to use.

b) depending on the specifics of the case, it may be possible to continue a case that was initially publicly funded on a CFA basis, once it turns into a small claim. The statutory charge for the pre-action period should be covered by the pre-action fast-track costs order, meaning that the client’s damages won’t vanish into the statutory charge. But that is going to take careful evaluation of the client’s benefit.

Illegal Eviction and Disrepair damages

Published
by
NL
on 5 June 2008
in Housing law
. 2 Comments

There were a couple of cases mentioned in the June issue Legal Action that are worth a consideration when looking at quantum in illegal eviction cases, and also to some extent in disrepair cases. Legal Action has the full details, but in brief…

Addison v Croft Preston County Court April 2008
Assured Shorthold tenant. Landlady turned up with estate agent and buyer with no notice. A fortnight later, the tenant was physically ejected by four men, with some bruising. The tenant was out, sleeping at friends and in his van for 20 nights, before obtaining an injunction for re-entry, which was complied with.

  • General damages £3000 for fright and upset, and 20 days out of home without possessions.
  • Aggravated damages £1000 for manner of eviction
  • Exemplary damages £1000, following Law Commission guidance in Aggravated, exemplary and restitutionary damages (LC 247)

Rubio-Manzano v Ace Lettings and Pedonomou Clerkenwell and Shoreditch County Court April 2008
Assured Shorthold tenant who threatened to withhold rent due to disrepair (of which more below). Three men turned up and forced their way into the flat, threatened the tenant, pulled the telephone out of the socket. One caused injury to another tenant by kicking the door. Defendants then delivered a letter stating that the bearer was a certificated bailiff with powers to enter and seize goods. The tenant left to stay with a friend and put most of her belongings in storage. A couple of weeks later she returned to find locks changed and belongings interfered with. Police and tenancy relations advised the tenant to break in to remove her goods. The property was then left.

In criminal proceedings, the company pleaded guilty to two counts of harassment under the Protection from Eviction Act 1977.

  • Fines £2000 and £200 for the two incidents. (The Court said if the company directors had been individually charged, there would have been a likely custodial sentence).

In Civil proceedings

  • General damages £6000 for harassment and aggravated damages
  • Exemplary damages £2000
  • Special damages £840.40

There was also a disrepair claim. Disrepair ‘throughout the tenancy’ (May 2001 - Feb 2003).

  • radiator leak in hallway, causing staining and fungus growth
  • leak to bathroom ceiling
  • mice infestation
  • bannister loose and dangerous
  • windows in disrepair and draughty
  • poor decorative state
  • oven and grill did not work

Damages for disrepair were assessed at 30% of rent for a year (£3500) with a set off of one month’s rent owed (£840.40).

Comments

On the disrepair claim, this is another data point suggesting that the Courts are open to arguments for damages based on percentage of rent following English Churches v Shine and Earle v Charalambous, rather than the Wallace scale, as I have suggested before. That said, although the report doesn’t give detail on the disrepair, 30% on the headline items seems a little low. But there are so few disrepair claims getting to trial, it is hard to be sure. Counsel for the Claimant was Robert Latham, solicitors were Hopkin Murray Beskine - anyone care to comment further?

This case also appears to be support for the view that damages based on a percentage of rent is not based on the proportion of the property that was/is occupiable or useable - the percentage is not directly a question of useable floorspace, which is an argument I have heard advanced by some Counsel. Personally, I don’t think that Niazi, Shine or Charalambous entail that view, and that this is an unnecessarily mechanistic approach to a percentage calculation.

On the illegal eviction, clearly Rubio-Manzano is more generous than Addison, particularly given the actual physical eviction and period of homelessness in Addison. £6000 for harassment and aggravated damages on the facts given for Rubio-Manzano is a high award, particularly given the previous criminal fines for harassment, and useful to cite for that reason.

Addison appears to pretty much follow the ‘£1000 per week of being out of the property’ rubric, but the aggravated and exemplary damages are also useful to cite.

By the way, Legal Action also has a report by Shelter Gloucestershire on Stankova v Glassonbury, the rent deposit case discussed here, confirming the details of Housed and my earlier reports.

 

Hey, you asked 2

Published
by
NL
on 13 April 2008
in Housing law and Legal Aid
. 2 Comments

More brief but hopefully helpful replies to the civil litigation and housing questions that brought searchers to Nearly Legal. As ever, nothing of what follows should be taken as legal advice and no action should be taken without obtaining full legal advice.

what does mandatory possession mean

It means that if the ground is successfully made out, the court has no option but to grant an outright possession order, no matter what the circumstances.

possible defences for a tenant of rent arrears the mandatory ground housing law

Presumably ground 8. There aren’t many defences. The list is:

  • technical defences (Notice not served or technically inadequate, claim doesn’t contain required details etc.), no guarantee of success at all with this one;
  • defences that affect the level of rent arrears, e.g. there may be a dispute as to the correct level of arrears;
  • most useful is a counterclaim for disrepair, as it will affect the level of arrears outstanding by the end of the hearing of the claim.
  • Rarely, and depending on the conduct of the landlord, the claim may be defended as oppressive, but this would require clear evidence that the landlord had, for example, significantly misled the tenant on the claim and its consequences.
  • If the reason for the rent arrears is related to a disability there may be a ‘defence’ under the Disability Discrimination Act, but this is very complex and the possibility of the defence may change at any moment over the next couple of months. This one seriously needs qualified advice and representation.

All these defences are potentially complex and getting advice and representation is a very good idea.

disrepair and accelerated route for possession

Then there is a counterclaim for disrepair. It won’t stop the landlord getting possession, although it will likely slow the process up more than somewhat, but could lead to an award of damages.

renting can we break a shorthold contract

Without owing the rent on the remainder of the tenancy (or at least until the property is re-let) you mean? The answer is no, not if you just want to go. There may be a break clause in the tenancy agreement (e.g. after 6 months on a 12 month contract) or there may not be. It may be possible to leave if there is something catastrophically wrong, but that needs detailed advice.

assured tenancy assignment

It may be possible, if it is not expressly ruled out in the tenancy agreement. However, even then, the landlord has to give permission. Unless the tenancy agreement expressly says so, there is no presumption that the permission will not be unreasonably withheld, meaning the landlord can refuse permission no matter how reasonable the request is.

can i stay in rented property once my notice requiring possesion has expired

Yes. Assuming you don’t fall under one of the exceptions, your landlord has to make a claim for possession, get a possession order from the court and then a warrant of possession. If your landlord tries to evict you without a court order and warrant, it is very likely to be an illegal eviction.

are there legal grounds for withholding rent with a secure tenancy?

With one very complicated exception to do with having to carry out repairs that are the landlord’s responsibility, no. I’ll say it again, you cannot and should not withhold rent. It puts you at risk of a claim for possession and will not resolve whatever the problem is. If the problem is something like undone repairs, you have another path in a claim for disrepair.

what rights do tolerated tresspassers have

The ability to apply to the court to stay or suspend an eviction and, if the arrears haven’t been paid off, the right to apply to the court to revive the tenancy. That is about it. No Right to Buy, no repairing duty on the landlord, no transfer, no succession or assignment rights. A tolerated trespasser can still bring a prosecution against the landlord under the Environmental Protection Act for nuisance, though.

tenants rights bed bugs wandsworth housing authority

Ouch. Unless it can be shown that the infestation came from an area that is under your landlord’s control (communal stairs, vents etc., but not gardens or other flats) you are pretty much on your own. If it did come from the communal area, it could be a nuisance prosecution, but this would need expert evidence.

legal aid for housing law

Yes, but get it while it lasts.

And lastly and very worryingly

trainee solicitor forging signature

The trainee has forged, or someone has forged the trainee’s signature?. Presuming the former, the trainee is in a whole heap of trouble and has quite possibly ended their career. If this is from a trainee thinking about forging a signature, it would be a cretinously stupid thing to do and just deeply, fundamentally wrong.

Making Good and homeless figures

Published
by
NL
on 10 March 2008
in Housing law
. 1 Comment

Via Garden Court’s 10 March 2008 bulletin.

Birmingham (yes them again) have had their tenancy agreement found to be misleading by the Ombudsman in terms of their liability for making good damage resulting from repairs.

Homeless figures are out for the last quarter of 2007. Decreases in both decisions (6%) and acceptances (1%) on the previous quarter.

There are a couple of interesting case reports in there too, not yet reported elsewhere:

Hassan Omar v City of Westminster [2008] EWCA Civ, [2008] All ER (D) 38 (Mar)

and

R(Niypo) v Croydon LBC [2008] EWHC Admin, [2008] All ER (D) 24 (Mar)

both on aspects of homelessness, so read the bulletin…

Statistics can be fun at the SHLA

Published
by
NL
on 6 November 2007
in Housing law, Legal Aid and job
. 6 Comments

The Social Housing Law Association has released a ‘Policy Statement’ on the need for legal aid reform. Briefly, they claim that far too many weak cases are brought against social landlords by legally aided tenants and that the subsequent litigation costs to social landlords are unfair as s.11 protection means the landlord cannot recoup their costs even if they ‘win’. They want a tougher merits test by the LSC and, as a sweetner, suggest compensating by lifting the means test limit.

How they support this allegation about ‘weak cases’ being brought willy-nilly, apart from extreme hypotheticals, is by an attempt at statistics. This is what they say:

One way of gauging the extent of the problem is to consider the number of reported cases that are brought by tenants with legal aid. Although reported cases do not record whether the tenant of a social landlord had the benefit of legal aid s/he will invariably have had legal aid unless appearing in person. Of cases reported in the 2005 Housing Law Reports, 44 of them involved social landlords. Tenants initiated 80% of them yet won only 23%. This figure suggests that the merits threshold of reasonable prospects is not being adequately enforced. Moreover social landlords initiated only 20% of them yet won 77% and this figure suggests that social landlords impose a much higher merits threshold on themselves.

In a spirit of disinterested inquiry, I thought I’d see just how many ways this exercise is unrepresentative and useless for all practical evaluative purposes. Where to start…

The selection is from reported cases. These are, by definition, unusual and unrepresentative. They are reported either because they are a higher court decision, appeal decision or because an unusual point of law or potential precedent decision is involved. They are, therefore, by definition, likely to involve a high proportion of difficult cases. Only one year of Housing Law Reports, 2005, is analysed, making no allowance for a potentially exceptional year.

I’ll leave alone the assertion that the tenants will ‘invariably’ be legally aided.  It is an unsubstantiated assertion, but I’d be willing to stipulate that a very high proportion will have been.

Of the reported cases, 44 involved social landlords. Out of how many? We aren’t told. Is this a large proportion? An isolated few? No idea.

Tenants ‘initiated’ 80% of the cases. What is meant by initiated? I simply don’t believe that the tenant was the Claimant in 80% (35.2 cases? At least get the numbers right). I can only surmise that applications and appeals by tenants in existing proceedings begun by the landlord, are included in this figure. These are not ‘tenant initiated’.

Tenants won ‘only 23%’ of the cases (23% of 44? 10.12 cases? or is it 23% of the 80%? We aren’t told but it looks like the former). It appears from earlier in the statement that the definition of ‘won or lost’ for the SHLA is solely a costs order:

The LSC is not currently able to say what percentage of its funded cases are won or lost (ie which side has to pay the other’s costs).

So anything with no order as to costs, costs reserved, or something like a stay of warrant application which can be successful for the tenant - warrant suspended - even if costs are given against them (quite common), will be taken as a loss by the tenant. In terms of  social housing cases, for these and other reasons, a simple costs award is a wholly inadequate measure of ‘winning’. It is sadly without a trace of irony that the SHLA proposes the costs order test as a better replacement for the LSC’s test of ’substantive benefit’.

Social Landlords initiated ‘only 20%’ of the cases (8.8 cases?). This is dubious, for the reasons given above. Still, we are told they ‘won’ 77% (33.8 cases? or is it 77% of the 20%. We aren’t told). This supposedly illustrates that landlords have ‘a higher standard of merit’ in bringing cases. It does no such thing, of course. Unless the figure is 77% of the 20%, it says nothing about the level of success by the landlords in the cases they ‘initiated’, just their level of success overall. It would be entirely possible for the landlords to have lost all of the cases that they brought and still have a 77% success rate.

So, a bunch of meaningless and inaccurate figures, from which tendentious conclusions are reached. What makes it all the more annoying is that the members of the SHLA are the ones who actually could give clearer figures. The social landlords and their lawyers have the figures on cases against publicly funded tenants and their outcomes, after all.

So, to any SHLA members reading this, how about it? Some actual figures? It would be interesting. But you will need a better measure of success than a costs order, honestly.

By the way, the one hypothetical but supposedly typical example of a weak but funded case is the anti-social tenant who denies everything in the the face of considerable evidence.  Such a case would very likely not satisfy the LSC funding conditions and funding would likely be withdrawn as soon as the LSC noted that there was no defence to substantiated events or convictions. How do I know? I have seen it happen, more than once. The client will have been advised of the low chance of success and the probable withdrawal of funding. If they persist in their instructions and by some miracle funding isn’t withdrawn, then it remains the legal aid lawyers’ duty to follow their client’s instructions, even if inwardly screaming.

Quantum in Disrepair

Published
by
NL
on 13 September 2007
in Housing law
. 12 Comments

point at the problemI’ve been meaning to post on this for a while and have been prodded into life by quite a few searchers on the topic. The reason I’ve been delaying is that, frankly, it is a bit of a sod. Unlike the carefully calculated, quantified, actuarialised and tabulated scales of Personal Injury claims, disrepair quantum is at best foggy, at worst an aporia.

There are reasons for this, mostly the lack of cases taken to trial, and with it lack of detailed ‘authorised by the higher courts’ means of assessment. It is also because the heads of damages aren’t as clear, being allegedly contractual but with a vague importation of tort.

This is my attempt to summarise the current situation, with a suggestion of where matters might move and why they are unlikely to.

From 1998, the main case has been Wallace v Manchester 30 HLR 1111 (also as [1998] EWCA Civ 1166). Wallace said firmly that the base of quantum is contractual, not tort, the principle being the restitution of the difference in value between the property with disrepair and the property if the landlord had fulfilled the repairing obligation. Discomfort and inconvenience for the tenant are a part of this head, not a separate, tortious, head of damages.

But how to assess this? Wallace was wonderfully vague. Either a Global Award - an assessment of damages as a whole - or a Nominal Reduction approach - an award for reduction in rental value - or both as one. But Wallace did suggest that a global approach should be cross checked against a nominal approach.

However, Wallace did unofficially set up a tariff of an award of between £1,000 and £2,750 per year as a scale for disrepair. Updated for inflation, that is now £1264 to £3477 per year of disrepair, depending on the seriousness of disrepair.

proverbial mould[Now, before any non-housing lawyers and tenants reading this start getting their calculators out to work out what their compensation payout will be, it isn't that straightforward. This is assuming that there are no liability issues, no issues about notice or access, the tenant has excellent records and, for reasons explained below, no settlement offers are made. It is safe to say that this never happens. This is a tool for considering a range of likely compensation, no more. Settlements therefore tend to be lower than the tariff figures suggest, read on for other reasons why.]

Oddly, this tariff has become the norm. Most settlements work on some form of the Wallace scale. I say oddly because the Nominal Reduction approach, based on rent payable, could, even at the time of Wallace, produce higher awards.

More recently, Niazi Services Ltd v Van der Loo [2004] EWCA Civ 53, and English Churches v Shine [2004] EWCA Civ 434 have gone some way to affirming a Nominal Reduction approach, based on a proportion of rent. While this means that the maximum award is limited by the rent ( and that higher rental property will attract a much higher award for relatively small disrepair), given that even a low average social tenancy rent is worth £4000 per year, an assessment of damages is likely to be higher than the Wallace tariff (even adjusted for inflation. The Wallace tariff in that case amounted to a scale of something like 50% to 100% of rent, as far as I recall).

By the way, Earle v Charalambous [2006] EWCA Civ 1090 confirms the use of the nominal approach, but also gives leaseholders the route of a proportion of an assessed open market rental value as the base for the rent value. The argument rejected was that a nominal rent approach was not open to leaseholders claiming for disrepair.

Why haven’t calculation and negotiation of damages moved to a nominal rent model? This would be likely to raise damages on the whole, even if not by a very large amount in many cases.

The answer is not straightforward. But the main reason is risk and the Civil Procedure Rules (CPR).

Hardly any disrepair cases get to trial, as most get no further than a negotiation over settlement. But trial is the only place where the valuation approach will be tested and confirmed, also giving a useable precedent.

Why do the cases usually settle? For the non or student lawyer readership, the answer is risk resulting from the effects of Part 36 of the CPR. For instance, if a few weeks before a trial date (or indeed at any point before that), the landlord makes an offer of settlement that is reasonable but at the lowish end of the scale from your estimation of the claim, the calculation goes like this:

If the matter proceeds to trial, the extra legal costs from the point of the offer are likely to be c. £5000 (at an absolute minimum for both sides’ costs). If the claimant does not get a damages award at trial that is better than the offer, they will be liable for the legal costs of both sides from the closing date of the offer. So, if the offer is in the range that a court may award, there is a genuine risk that the claimant will end up liable for the £5000(+) costs. This will wipe out or severely dent any damages award actually made, because the costs will come out of the damages.

The same calculation pretty much applies for legally aided, private and ‘no win no fee’ (CFA) clients. So, the discrepancy between the offer and what the claimant’s solicitor (and barrister) think is the likely range of damages at trial has to be very large to go ahead. This takes a strong claimant’s case and a rather bad defendant - which rarely happens. Alternatively, it takes a private client who is happy to bear the risk and go on even after advice, which rarely happens. Neither legal aid funding nor a CFA will usually support the burden of risk.

The Part 36 offer rule was intended to make cases settle, and it works. But in disrepair, I’d suggest it is keeping disrepair damages artificially and unfairly low.

I would be delighted to hear any accounts of disrepair damages awards at trial from readers. I do have a couple of recent examples, but the circumstances are both utterly distinct and relevant to the award, so anonymity, alas, forbids. Suffice it to say that in both cases, the Court inclined to a nominal percentage of rent approach, rather than the Wallace ‘tariff’.

What counts as serious or less serious disrepair is a matter of fact, evidence and some common sense. But is also a topic for another post.

Waxed Moustaches

Published
by
NL
on 13 June 2007
in Housing law
. 3 Comments

I caught someone from the National Citizens Advice Bureau on BBC Breakfast this morning, commenting on a CAB report on the large number of people in private rented properties in bad condition who are promptly evicted if they complain or do anything about the disrepair.

Anecdotally, I’d certainly support this. We do hear from quite a few private tenants who have received notice or possession orders after raising repairs, or getting an inspection by the local authority environmental health. Often these people have been living in deadful conditions with only silence or worse from the landlord.

As the CAB spokeswoman pointed out, there is little or nothing to stop this happening once the fixed period of an assured shorthold has elapsed. Apparently, Australia has some form of protection from eviction while disrepair issues are underway. I’ll try to find out about this - could be interesting.

moustache.pngAs it is, English tenants can only hope that their landlord is dim or greedy, because if the landlord goes the s.21/accelerated possession route, there is nothing they can do to prevent or delay possession if they are out of the fixed period. A separate claim for disrepair is possible, but always tricky when the ex-tenant is out of the property.

If the landlord is greedy, and if there are rent arrears, the tenant may be luckier. A possession claim on the basis of section 8 and/or 11 and 12 - all rent arrears of some form - presents the possibility of a disrepair counterclaim. This will certainly delay possession and, if the damages are enough to wipe out the arrears, put paid to the possession claim. The landlord will have to start afresh with a s.21 procedure, as one can’t run two possession claims side by side or amend the claim to insert grounds that weren’t in the Notice.

We had a case like this some months ago. Greedy or ill-advised landlord (because they were represented) made a s.8 claim for possession, after being served with a works order by the council once the client/tenant got Environmental Health in. The client, luckily, came to us. The rent arrears were substantial, but the disrepair significant. An immediate disrepair counterclaim was served. Of course, the matter then took many months to get to final hearing, and the result was that the damages more than cleared the arrears, possession claim dismissed, and the client had a grand or two over coming in damages and an enforceable order for repairs. We got costs…

But these are the very lucky exceptions. The CAB are calling for tenancy safeguards in these situations. It is, of course, a good idea, but frankly I can’t see any legislation happening soon. Everything will likely be put on hold pending the final report of the Law Commission review of housing law, which will be along in…a bit.

Small claims limits unchanged

Published
by
NL
on 20 April 2007
in Housing law and Legal Aid
. 0 Comments

As regular readers may recall, the limit for disrepair claims to fall into small claims was under review. Proposals were made to raise the current limit of £1000 to £5000. Regular readers will recall that I thought that this was a Bad Thing.

According to the Law Society, the Government will leave the disrepair limits at £1000. This is a Good Thing.

Social landlords seek to avoid disrepair claims. No repairs involved.

Published
by
NL
on 14 January 2007
in Housing law and Legal Aid
. 4 Comments

Searching for something else entirely, I stumbled across a press release from the Social Housing Law Association detailing their representations to the DCA on funding for disrepair claims, made late last year. Headed “Move to repel tenants’ bogus disrepair claims”, the report says that the SHLA made representations to the DCA to have the Public Funding eligibility cut off for a disrepair claim raised from a claim value of £1000 to £5000 because “It would make it five times more difficult for tenants to access public funding for disrepair claims” and in this way “the majority of tenants making claims for disrepair should be shunted into the small claims court to prevent them from claiming legal aid”.

Naturally it is in social landlord’s interests for this to happen, and the real reason for the proposals was perhaps made clear as “Quentin Paterson, a solicitor and committee member of the SHLA, said increasing the limit should lead to a large fall in the legal costs that social landlords pay to claimants’ solicitors.”

It is worth taking a closer look at some of the SHLA’s assertions.

Firstly, ‘bogus claims’? Given that an expert’s report - ideally a single joint expert - is a necessary part of the Pre-Action Protocol, any issued claim will, of necessity, be on the basis of actual disrepair. If there is dispute about duration and notice, then the Housing Association should be able to rely on their own records, assuming, of course, that they are at all competent. How is the claim bogus?

I would be delighted if the SHLA cared to put forward figures on ‘bogus claims’ and a description of what constitutes a bogus claim. Until then, I’m very sceptical.

Secondly, this level of £5000. General damages in a disrepair claim take the rent payable as a basis for assessment of quantum, considering diminuition of value of the tenancy. For social housing, weekly rent is typically £70 or £80 per week, giving an annual rent in the region of £3500-£4000. If we assume a really serious level of disrepair, such that the Court would give a 100% diminution of value, that had been going on for a year since the landlord was notified of the disrepair, then general damages would still be less than the £5000 proposed by the SHLA even for a full year. Such a serious level of disrepair would mean that the property was effectively uninhabitable, and would quite possibly be suitable for an application for interim injunction for immediate repairs. Nonetheless, for the SHLA, it shouldn’t be eligible for public funding if damages and repair value together were less than £5000.

Thirdly, the SHLA’s approach seriously misunderstands the current basis for awarding public funding. A claim for ‘compensation only’ has to be over the £5000 threshold currently, but also in actuality has to be of a potential level to meet a ratio of at least 2:1 claim value to likely costs, meaning some way over £5000 as a starting point in any case. However, a claim primarily for enforcement of repairs does not necessarily need to show the value to costs ratio. I find it very hard to see how a claim primarily for enforcement of repairs could be ‘bogus’. So the SHLA’s position would remove the most urgent cases where repairs needed enforcing from eligibility for public funding, whilst not actually affecting the compensation only cases. That is nonsense.

Small claims would be virtually impossible for a tenant - they couldn’t afford the expert’s report, just for starters. This is what the SHLA want, of course.

Frankly, I think that these representations to the DCA are more than somewhat cynical. If the housing associations are upset that they “were forced to devote considerable expense and staff time if they wished to resist claims”, the answer is fairly simple. Do the repairs within a reasonable time. Granted, some social landlords are lumbered with poorly built and decaying housing stock, and I have some sympathy with them on that basis, but attempting to make it difficult for people to make valid claims against them is not the solution.

As a postscript, it is worth noting that the Disrepair Pre-Action Protocol was introduced precisely to reduce the need for claims to be issued. Public Funding can be awarded to tenants to take the protocol steps. If social landlords were serious about reducing the amount of staff time and costs to tenants’ solicitors involved in disrepair claims, then they could avoid many claims by actually following the protocol. In my anecdotal experience, they tend to be atrocious at doing so, often doing nothing until a claim is issued.