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Disrepair miscellany


The December Legal Action also has the annual housing repairs update. A big tip of the hat to Beatrice Prevatt.

We’ve covered most of the cases here, but there are some others that are well worth a mention…

Brunskill v Mulcahy [2009] EWCA Civ 686 (no link)
This was a claim under S.11 Landlord and Tenant Act 1985 for personal injury from a fall supposedly due to moss or slime on the front steps to the property. At first instance, presence of the moss was held not to be a breach of the landlord’s S.11 duties. The Claimant’s appeal to the Court of Appeal (or possibly the application for permission) was dismissed.

Then a combined High Court and Court of Appeal case:
Bole & Anor v Huntsbuild Ltd & Anor [2009] EWHC 483 (TCC)
We’d missed this one from the Technology and Construction Court and on appeal. A house had been built for the claimants by the defendant builders and second defendant structural engineers. It had been built with inadequate foundations. C claimed it was thereby unfit for habitation and calso claimed against the structural engineers under s.1 Defective Premises Act 1972.

The Court held:

  • Unfitness for habitation was a matter of fact
  • It related to defects making the dwelling dangerous or unsuitable for the purpose, not minor defects
  • A defect in one part of the dwelling may render the whole dwelling unsuitable for habitation
  • Defects may render the dwelling uninhabitable even if not evident at the time the dwelling was completed.
  • The effect of the defects as a whole must be considered.
  • Considering the defects as a whole, the property as uninhabitable under DPA s.1 as the unstable foundations resulted in movement, cracking and heave. It was potentially dangerous.

The Court ordered remedial works of £214,116.91 and general damages of £4,500 (agreed).

The Structural Engineers appealed to the Court of Appeal, [2009] EWCA Civ 1146 (no link). The appeal was dismissed.

Whether or not a dwelling is unfit depends on the facts of the case.
It is relevant if it is necessary for the occupants to leave the property for a long period while remedial works are carried out. When the judge below referred to unfit for purpose, it was clear that he meant unfit for habitation – the purpose of a residential dwelling being safe and convenient occupation. There was no obligation to consider each defect individually, where the question before the Judge was whether the whole dwelling was unfit.

The Judge was also entitled to conclude that the cost of remedying all the defects was attributable to the defective foundations and a foreseeable consequence of the breach of DPA s.1. He was not limited to awarding the costs solely of making the dwelling fit for habitation.

And then some County Court cases on quantum:
Gorman and Lane v Lambeth LBC, Lambeth County Court, 1 November 2009.
The claimants were leaeholders of a 1 bed ground floor flat in a converted terrace. In 1994 they had reported cracking to the bricks over a rear bay window due to subsidence. Over the next 7 years Lambeth inspected and sent surveyors, who recommended underpinning works. Nothing happened apart from inspection pits being dug and wooden supports put in. Further consultations in 2004 resulted in no works but some further supports. The cracks made the whole flat draughty, cold and damp. In 2005 the Claimants could take no more and sold to a developer for a substantial undervalue.

The Claimants claimed for loss on sale and other loss, damage inconvenience and distress. A joint expert found the undervalue on the sale to be £100,000. The claimants claimed the 100K, plus general damages of £22K, special damages of £1500 and interest over 3 years at £25K.

The claim was settled at the door of court for £120,000 plus costs.

Aslam v Ali, Birmingham County Court, 10 June 2009.
The Claimant, his wife and eight children lived in a 4 bed house. From 2003 to 2006 the central heating only worked in two rooms. The windows were rotten and draughty in the kitchen and bathroom. There was penetrating damp and defective plaster in kitchen and hallway. During the winter, the whole family had to sleep in two rrooms and use extra blankets. The boiler was replaced in 2006. Windows were replaced in kitchen and bathroom by the tenant but the other defects remained.
50% of the rent of £60 per week from 2003 to 2006
33.3% of the rent from 2006 to 2009
Special damages including costs of extra blankets and the replacement windows and doors.

Smyth v Farnworth, Wigan County Court, 3 September 2009
Private tenancy. The tenant suffered water penetration to a conservatory throughout the tenancy, a defective boiler from July to November 2007, a missing gutter and damage to the bedroom ceiling following a leak – itself promptly repaired. There was also a five week period of intimidation of the tenant, including threats of eviction.
£1,000 per annum for the leak to the conservatory (!!!)
£1,000 per annum for the defective boiler
£2,200 total for the other defects,
making a total of general damages of £4,700
£500 for the intimidation
£5,000 for exacerbation of the tenant’s depression through disrepair and the intimidation
£3,500 for exacerbation of her son’s asthma over two years.
(If the solicitors, or Counsel Sonia Birdee are reading this, what was the rent? Seriously, we need to know this.)

And lastly an HSE prosecution (hurrah – that is a whole two this year that we know of against private landlords).
Health and Safety Executive v Hussain, Stafford Crown Court, 20 February 2009
The Defendant rented out 12 properties, 9 of which had gas appliances. Only two had current gas safety certificates. On inspection a number of appliances were found to be immediately dangerous and others were at risk. The Defendant pleaded guilty to specimen charges under the health and Safety at Work Act 1974 s.2(2). He was fined £40,000, ordered to pay £44,500 costs, with 18 months imprisonment in default of payment.

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.


  1. J

    Brunskill is a permission decision only. I’ve emailed you the transcript.

  2. shade ashaye

    I want to make a claim against my housing association on the ground of disrepair to my bathroom and kitchen. I require a structural engineer to assess if the flooding was due to structural damage.

    • Giles Peaker

      Well, a surveyor, at least. But I am afraid we aren’t an introduction agency.


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