Part 1 of cases – mainly county court –  that we have missed or not heard of during 2010.

With our grateful thanks to Beatrice Prevatt of Garden Court for bringing these to our notice in her disrepair update at the HLPA conference:

Shazad v Khan. Birmingham County Court 26 August 2010

S was the tenant of a 3 bed house in which he lived with his wife and 5 children aged between 2.5 and 13 years. K was the landlord. Rent was £4200 per annum. S brought what appears to have been a counterclaim for disrepair for a period since 2005.

• 1 bedroom suffered water penetration, initially from a leaking roof, then from a blocked gutter and broken downpipe. The bedroom was unusable all year.
• 1 bedroom suffered water penetration due to defects to the chimney and was only useable during the summer
• The front door suffered from water penetration during rainfall since 2008.
• The boiler had not worked properly since 2005. It cut out unpredictably, such that heating and hot water had only been available for intermittent periods.

At trial, the DJ held this to be a serious case, particularly in view of the wholly disproportionate inconvenience and distress to the tenant’s household in comparison to the cost to rectify the defects to the landlord. Heating and hot water was a basic for life in the 21st century and their absence was unacceptable.

General damages
40% of rent in respect of the bedrooms and front door for a period of 4 years 7 months (£7700)
A separate award of £2000 per annum in respect of the intermittent heating and hot water for 4 years and 10 months (£9667. About 48% of rent)
However, the counterclaim had been limited to £15,000 so damages were capped at that amount. (The uncapped damages amount to 88% of rent for the overlapped period. Presumably the £15K was the fast track limit at the point the counterclaim was brought. Now £25K, of course.).

[NL – This is a particularly useful case in the separation of the heating and hot water issues from the other disrepair. It supports the argument that a percentage award for heating and hot water problems should be taken in addition to percentage awards for other disrepair for the affected periods, which is one that I at least have had to fight on a few occasions. The overall percentage of rent award is also at a significant level, worth using in argument by claimants.]

Ontas v Pathmeads Housing Association. Edmonton County Court 12 April 2010

O was the tenant of a 3 bedroom house for 26/03/2007 to 25/08/2008. The property was fully furnished and the rent was £255 per week, then £277 per week for 01/04/2008.

O brought a claim for:

• Defective heating and hot water for 4.5 months
• Defective windows and doors causing heat loss
• Defective conservatory roof causing damp
• Damp and missing light to downstairs WC
• Minor kitchen sink blocking
• External dilapidations
• Broken glazing for a period of 3 weeks, which had caused problems with ‘local drunks’ thinking the property was unoccupied
• Disrepair enabling access for mice leading to serious infestation.

General damages: Global award of £5000 (about 28% of rent over the whole period)
Special Damages: £315
Interest from date of issue.

[NL – it is noticeable that this is only one of two Housing Association/Council cases. Pathmeads now possibly being a repeat offender in ‘fighting daft disrepair cases‘. It is rare for such cases to get to trial these days – any viable case will usually be settled, at least with half decent advisors. So it is cases against dodgy private landlords that we by and large must look to for the Courts’ views on quantum.]

Bernard v Meisuria. Central London County Court 22 November 2010

B was the tenant of a 5 bedroom house, with his disabled wife and 5 children. B brought a claim for:

• Rat infestation from 2005 to March 2009, when they moved out.
• Dampness to one bedroom
• Defective wiring
• Defective boiler for a briefer period

At trial and on contested evidence between the tenant’s EHO and the landlord’s pest control officer and CCTV expert, the Judge found that the rat infestation emanated from drains which were in disrepair.

Damages:
£20,000 in respect of the rat infestation, including the special damages, on the basis that a property infested with rats had little rentable value.
£1250 in respect of the other disrepair

Indemnity costs and interest on the damages and costs at 1% over minimum rate from 24/12/2007 as the tenant had beaten his Part 36 offer.

[NL – frustratingly, given that this was a pest infestation consequential to disrepair, rather than a common law nuisance claim, we don’t know what the rent was here. From the Judge’s reported view, it would seem that the diminuition in rent must have been very high – near 100%. But I don’t think that the reported basis – the ‘rentable value’ of the defective property – is the correct assessment, or more generously, the correct way to describe the assessment.]

Photis v Shamas, Uddin and Shamas. Bow County Court, 3 December 2009

P was the tenant of the property. She claimed for the period March 2004 to January 2009:

• Sagging ceiling in the living room due to leak from overflow to the bath above
• Front door didn’t open or close properly during winter months
• Broken patio door
• Defective bedroom window
• Damp to one bedroom
• Rodents from adjoining property owned by the LLs.
• Special damages included damaged laptop caused by leak to living room from the bath after P had been told by the LL’s that the problem was fixed.

The CJ accepted that there was significant disrepair although the property was habitable. P had been unable to have a bath or shower due to worries about the overflow leaking. The patio door was a security risk and the front door a security and fire risk.

Damages:
20% of rent March 2004 to July 2007
25% of rent July 2007 to January 2009 (as the problems and rodent issue had worsened)

The rent was
£520 pm 03/2004 to 06/2005
£600 pm 06/2005 to 09/2006
£650 pm 09/2006 to date

General damages of £7455. Special damages of £400. Interest on general damages of £211

Smyth v Circle Anglia. Clerkenwell & Shoreditch County Court 2010 (settled)

S was the tenant of a 1 bed flat. He brought a claim for the period 30/07/2007 to 25/02/2010 for:

• Water penetration to living room from balcony above.
• Condensation dampness throughout

After 25/02/2010, S had been rehoused to enable remedial works to be carried out, including installing ventilation to bathroom and kitchen, thermal insulation to external walls, ceiling and floors.

The condensation claim was on the basis that the tenancy agreement required the landlord to keep the property in ‘good condition’.

S obtained default judgment. The LL’s application to set aside default judgment was refused on the basis that there was no explanation of the failure to file a defence or comply with the pre-action protocol. The claim was settled for damages totalling £10,000. (Over 75% of rent of £90.94 per week)

[NL- OMG. Without seeing the exact wording of the tenancy agreement it is hard to tell if it fell into the Welsh v Greenwich LBC (2001) 33 HLR 40 CA exception to the usual rule of no landlord liability for condensation. But clearly the bright spark running the claim thought that the commitment to keep the property ‘in good condition’ did mark a significant additional commitment over s.11 ‘repair’, well spotted if so. I’d expect the issue to go to trial, but the tenant also got lucky in Circle Anglia’s catastrophic failure to actually deal with the claim in any way! A useful reminder to claimants’ advisors to always pore over the tenancy terms, even if it will be once in a blue moon…

Good to see a court imposing some sort of sanction on failure to compy with the pre-action protocol. This doesn’t happen often enough – the protocol requirements are clear and there is no good reason why landlords should not comply, but they often don’t in my experience. Perhaps the courts could consider some form of sanction at allocation stage, as non-compliance otherwise gets lost in the ongoing claim.]