Disrepair: Damp and quantum

Following on from this post on disrepair counterclaims and as a precursor to a substantial post on disrepair quantum to follow very soon(ish), this is a County Court Judgment on an assessment of quantum hearing on 28 March 2014 (there was a default judgment in October 2013).

Clark v Affinity Sutton Homes Ltd. Barnet County Court 4 April 2014.

Mr C was the assured tenant of ASH since 2004. The property was a one bedroom flat with an initial weekly rent of some £66.

There were problems with damp at the property. The expert’s report of May 2013 found:

[a] Leaking within the vicinity of the bathroom

[b] Dampness internally within the kitchen sink unit

[c] Reception room – due to condensation dampness, mould growth is a problem to the external wall at low level

[d] Bedroom – due to condensation dampness, mould growth is relevant at a low level to the external walls and also a partition wall with the kitchen.

[e] Kitchen – due to condensation dampness some mould growth at a low level.

[f] Entrance hall, – due to condensation dampness, mould growth at a low level.

Following the decant of Mr C, ASH found:

that the damp problems have been caused by a completely defective damp proof course which has been breached and that the remedy will be to replace all of the floors in the premises with new concrete floors containing effective damp proof courses.

The dispute was over the extent and duration of the issues between 2007 and 2014 and then quantum resulting.

The Defendant’s case was that the periods could be broken down as:

[i] 2007 to 2008 – problems which could have been dealt with more quickly

[ii] 2009 to 2012 – no serious problems

[iii] 2012 2013 – serious problems

[iv] 2014 – no problems as the claimant could have decanted more quickly.

The Claimant argued that there had been significant damp problems throughout, and that the expert report and ASH’s own findings on the decant showed this.

The court found that there was an absence of complaints about damp between 2009-2011, while there were many com plaits in 2007-2008 and 2012-2014. There was no unreasonable delay in Mr C agreeing to decanting in 2014.

So on the balance of probabilities, there were two periods of problems that attracted damages:

[i] 1st April 2007 to 31st of August 2008

[ii] The whole of 2012, 2013 and up to the decant on 10 February 2014.

The method for assessment of quantum was agreed by both parties to be “by reference to a percentage of the rent due, depending upon my assessment of the seriousness of the problems”.

Mr C argued for 49% throughout, on the basis of Arabhalvaei v Rezaeipoor December 2007 Legal Action 30, where the assessment was 50% of rent, and other cases reported in Legal Action and the Housing Law Casebook over the years where the percentage of rent could not be ascertained.

The Defendant relied on other cases from Legal Action supposedly comparable, where the proportion of rent was between 30% and 38% of rent.

The Court found:

Doing the best I can, and taking into account the nature of the problems (less serious in the first period and more serious in the second period), their duration and the claimant’s vulnerability due to his medical conditions, I believe the appropriate percentage for the first period is 35% and for the second period is 45%. In particular, the extent and nature of the claimant’s medical problems mean that it must have been very difficult indeed for him living in the premises during these periods, particularly the second period

On the weekly rent for the periods, “periods 1 and 2 therefore come to £6,779.88”.

The 10% Simmons v Castle uplift was then applied to this total, to reach £7,457.86

Special damages. It is hard to make out from the judgment what the special damages were. Apparently items lost or damaged by damp, including carpets, dehumidifier running costs, and additional heating costs for affected periods.

Turning to special damages, I accept that the claimant has lost, or had destroyed, the various items listed in the schedule at items 1 to 16.  However, there is no documentary evidence of value and additionally, the claimant seeks replacement value rather than the value of the items as at the date of loss.

I accept in relation to item 6, the carpets, about which I will say more later, that replacement value is the appropriate method of calculation, as it would be difficult if not impossible to purchase second-hand carpets, but otherwise some discount has to be given for depreciation so as to properly assess market value.

I discount the figures claimed the items 1 to 16 (except item 6) by 25%.  I therefore reduce the sums claimed for those items, namely £2,916.99, by £729.24 and award £2,187.75.

For item 6, I award £479.85. There was discussion before me as to whether I should make any award for item 6 as the defendant is planning to re-carpet the premises following remedial work.  I was told that the claimant does not want the new floors to be re-carpeted and I therefore make this award on the basis that the defendant will not have to relay carpets following remedial work.

Item 17: the cost of running the dehumidifier is claimed at £20 per week for 8 weeks.  Mr. Douglas produced a document containing average running costs for dehumidifiers, but they vary greatly depending on the unit’s power rating and there is no evidence of the power rating of the unit provided.

The costs range from £1.22 to £18.27 per week based on 12 hours per day. The claimant says that he had to use the dehumidifier for 24 hours a day.  I accept, given the extent of the problem, that that would be reasonable, so the range increases to £2.44 to £36.54 per week. As the claimant’s figure of £20 falls squarely within that bracket, I accept his figure and award the amount claimed £160.

Item 18: the claimant claims extra heating for 6 years.  I will allow a claim for the periods I find that he was affected which total 183 weeks.  £5 per week seems a reasonable figure to me, so I award £915.

Total special damages: £3,742.60.

Total damages: £11,200.46

Comment

Interesting to see the continued progression of Shine v English Churches as the method of assessment of quantum.  Also good to see the unproblematic application of the Simmons v Castle uplift.

However, this case does perhaps illustrate the difficulties in supporting a precise assessment via case law, when much of the reported case law predates (or does not use) a Shine percentage assessment – opting instead for a Wallace tariff approach or a global assessment based on, well, whatever the Judge thought.

That said, 35% to 45% does not seem like a harsh assessment on the reported issues.

However, the position on not awarding damages for periods when the tenant’s activity in reporting issues had tailed off strikes me as problematic. In the absence of any evidence of repairs, the defect has to be presumed to continue. There may be many reasons why reporting tails off, or restarts, not least sheer weariness! But it seems that the Claimant’s witness evidence did not address that  period and the tailing off of notice, so we are not able to draw conclusions any different to the Court’s.

On special damages, given the presumable absence of receipts, etc.,  75% is a good result. The position on carpets is interesting – replacement value being the appropriate method of calculation as suitable second hand carpets would be difficult if not impossible to obtain. Unfortunately, how the final figure was arrived at – what the ‘discount for depreciation’ was – is not clear.

Our thanks to Morayo Fagborun Bennett of Hardwicke Chambers for the Judgment.

About Giles Peaker

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 +.
Posted in assured-tenancy, Disrepair, Housing law - All and tagged , .

4 Comments

  1. Having looked across NL for quantum for disrepair, an approx 35% rent reduction seems to be the ‘average’.

    However, in situations such as shared ownership, where the rent is only a portion of the costs to a tenant and other charges include service charge and mortgage payments (with a range of costs dependant on mortgage rates and type), how would the court look to define quantum – rent element only OR total cost to resident?

    If the total cost of ownership varies due to mortgage lending rate fluctuations, would quantum have to be calculated to reflect cost fluctuations?

    It would seem unfair to not account for all charges and if the tenant had secured a favourable mortgage deal, would the reduced costs of mortgage also mean the tenants good financial planning would result in a comparative reduction of quantum against a (shared) owner paying more for their mortgage?

    • It is a good, and undecided, question. My view is that the shared ownership tenant/lessee should be dealt with in the same way as a leasehold property – as per Earle v Charalambous – a proportion of the notional open market rent. After all, the repairing covenants are limited to those set out in the shared ownership lease, as with a leasehold, and section 11 doesn’t apply.

      I can’t see a calculation based on ‘total cost of ownership’, as the existence or otherwise of a mortgage is not a relevant factor for the landlord/lessee contractual obligation.

      But there is no authority on the point.

  2. I am having issues with disrepair (since 2010!) With Affinity Sutton housing. Asbestos, blown plaster (all through out flat both ceiling and walls) just to name 2 of many. what legal venture should I go down as a mother to 3 children affinity don’t seem to feel my case is important! Any help/guidance would be very appreciated.thank you

  3. We have had methane gas smells coming up our kitchen sink from the outside drain at the back which has had an uncovered sewage pipe on it for over 3 years. I have severe breathing problems being made worse by this but Clarion Housing say it will not affect my breathing. Methane can not only be explosive but can cause asphiation of the breathing. They will not listen.

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