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07/01/2011

Catching up with 2010 Part 1 – disrepair

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.]

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.

8 Comments

  1. Emeric

    Well this is all very one-sided isn’t it? Would be good to see a few cases where landlords won against unscrupulous tenants. What if a tenant discloses a mouse infestation for the first time through a pre-action protocol and no prior notification of this had been made? The local council went to view the property in Dec 2010 but found nothing, tenant says the mouse infestation started in Sept 2010 but nothing ever received to the landlord till the pre-action protocol was received in March 2011? Why do people get legal aid to do this? Section 21 served… Please advise cases where landlord has won.

    Reply
    • chief

      Not going to be much to report on quantum on cases where the landlord wins is there?

      Classy comeback to a report of a rodent infestation though – eviction, touché.

      Reply
    • NL

      Emeric, for someone complaining about us being ‘one sided’, you appear not to be giving us the whole picture. You have omitted to mention that your tenant also complained of damp and mould in the bathroom, a falling ceiling in the living room, damp and crumbling plaster in a bedroom with a hole in the wall resulting. This is on your own account on the landlordzone forum.

      Obviously, we’re not going to comment on your individual case. I merely mention this so as not to leave a one-sided picture.

      As for cases where the landlord won, this was a report on how damages in disrepair cases are calculated, so they would be irrelevant. But it would be a rare case that would make it to trial if the evidence of disrepair was so poor that the landlord would ‘win’, in any event. You won’t see reports of claims discontinued or never issued, because there is no case to report.

      Reply
  2. David

    [Edited by J – oh where to begin? This is – as you may have noticed – a (now somewhat old) post about disrepair quantum cases. The details of your dispute with your tenant are not on point, unless and until: (i) they obtain an award for damages against you; (ii) in turn, someone tells us about it; and, (iii) we decide to report it on the blog. This is not a general forum for landlords to complain about tenants; rather, it is a housing law blog. If you want to complain about tenants, I’m sure there is a Daily Mail discussion forum where you’d be welcome.]

    Reply
  3. Richard

    Really interesting blog, thanks. Our boiler has been out of action for 2 1/2 weeks now and so I’ve been doing quite a bit of research into LL obligations under s.11, what is a “reasonable time for a repair” and what would be an appropriate starting point for a reduction in rent by way of compensation.

    We’re going to ask for a 50% reduction but I’m not sure whether this should apply after a reasonable time (14 days at this time of year?) has elapsed, or from day 1 of the problem.

    If anyone has any thoughts on this I would be very interested in hearing your views.

    Thanks

    Richard

    Reply
    • NL

      It is arguable either way.

      Liability for the defect doesn’t arise until the expiry of ‘a reasonable time’, so there is the argument that that is when the clock starts ticking on damages. The tenant would have had to live with the defect for that period anyway. Damages then run until works completed.

      On the other hand, the landlord’s failure to do anything in the ‘reasonable time’ could be a basis for arguing liability for damages runs from day 1, as the time taken for repairs is still to come. On this view damages would then run until works are arranged (if not carried out)

      It comes to the same period overall, though.

      Reply
  4. pearl johnson

    Sanctuary housing failure help

    Reply

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