Disrepair: La luta continua!

2013 was a difficult year for claimant disrepair. Changes in legal aid funding have made it all but impossible to pursue a disrepair claim under legal aid alone, as funding is only available for an order to carry out repairs to where there is serious risk to health or well being of the tenant or other occupiers, and not for further repairs or the damages claim (although full funding remains for a counterclaim to a possession claim, which can be brought after the possession order).

For those carrying out disrepair claims under Conditional Fee Agreements, success fees ceased being recoverable from the Defendant, as did ATE premiums, but, despite the Jackson proposals for QOCS, the Claimant remained at risk of costs. Both success fee and ATE premium (if any found) now come from the Claimant’s damages award.

In this situation, while disrepair claims can certainly still be run, it is perhaps more important than ever for both claimant and defendant to be aware of the Courts’ assessment of quantum on disrepair cases.

So, here are some of the few recent-ish cases to have reached trial or reported settlement. Cases pre and post date the Simmons v Castle 10% uplift in general damages (for all claims where damages awarded after 1 April 2013, save for those funded on a CFA signed before 1 April 2013).

There is still a remarkable variation in the different Courts’ approaches to quantum, from a ‘broad brush’ or ‘global’ view, to a notional percentage of rent as per English Churches v Shine.

We noted Clark v Affinity Sutton Homes Ltd (Barnet County Court 4 April 2014), a few days ago.  The following County Court cases are from Beatrice Prevatt’s Housing Repairs Update Legal Action Dec 2013/Jan 2014 (available here):

Price v City and Town Group Central London County Court, 12 August 2011

A Rent Act protected tenancy. Water ingress and draughty windows since November 2000. Some limited repairs between 2006-2010. Claim issued in 2006. Order for extensive roof repairs in April 2010.

Defended on basis that property was old, 19th Century, and defects not major. Defence rejected. The age of the property did not mean that it should not be wind and water tight. Defects not de minimis. Defendant’s approach was dismissive and full repairs had taken more than a decade. Defendant liable from end of December 2000.

Damages of 30% of rent overall, taking into account that the problems had diminished over the period. Average rent of £3,816 per year, giving general damages for the 112 months Dec 2000 to April 2010 of £10,685.

Southwark LBC v Munu &Munu Mayors and City of London County Court 16 May 2012

Disrepair counterclaim. A number of defects dismissed as not amounting to disrepair in law.  Also found tenants had been unco-operative and refused access. Found disrepair for:

Loose wash hand basin, with no cold water supply functioning. Ill fitting and draughty windows in two bedrooms. Ill fitted panels and kick boards following kitchen installation. Non-functioning bathroom extractor fan. Disconnected flush pipe to one WC.  Damages of £1250 awarded. (Period and proportion of rent unknown).

Also repeated backsurges of sewage due to defective external drain over period of 18 months, ‘a significant and very unpleasant intervention to home’. Damages of £2000.

Special damages of £3000 and an award of £500 to each of the three children. (I can’t see on what basis the award to the children was made, whether the backsurges were treated as disrepair or as nuisance, there doesn’t seem to be a basis for these awards).

Dr Malik v Brohler Bow County Court 25 October 2012

Counterclaim for disrepair on an assured shorthold tenancy. The possession claim under s.21 was dismissed on failure to protect the deposit.

Court found notice of disrepair from December 2007. Significant dampness to two bedrooms for 6 years, making the rooms very cold. One bedroom unusable. The other bedroom had draughty windows. Cause of damp was a defective conservatory. Also gaps between the brickwork and the sliding doors of the conservatory. 4 years of a leak from WC into kitchen, leading to collapse of kitchen ceiling.

A squirrel had died in the space above the kitchen ceiling. Following repairs to the ceiling, the workman had left a gap in the ceiling through which maggots, then the squirrel’s corpse fell.

The electricity supply had been installed incorrectly, leading to 3 days without electricity, electric shocks and a concern for safety of tenant’s children. Re-wiring was not carried out for 6 months, during which time unsafe extension leads had to be used.

Damages of 40% of rent for final 6 months and 28% of rent for preceding 3 years 4 months (reduced from 30% rather than calculate what would have been a reasonable period for the landlord to have carried out repairs). Total general damages £15,322.66

Ngoma v Dhillon Birmingham County Court 6 December 2010

Assured shorthold tenancy of two storey, three bed house, from February 2006 to February 2012. Rent £550 per month.

Penetrating dampness to front and rear bedrooms causing mould growth, from perished brickwork and mortar. Broken seal to double glazing in front bedroom. Rising damp to front living room. Some damp to rear living room. Damp and mould in kitchen aggravated by leaks from bathroom above. Leaks from seals around bath and taps. Leak from kitchen sink into unit. Structural cracks. Incomplete drainage work from November 2010 leading to foul odour in the garden.

General damages assessed at 70% of rent for the full period. £27,720, with interest of £1,663.20. Total: £29,383.20

Hammersmith & Fulham LBC v Millani-Kalkhorani Willesden County Court 14 January 2013

Counterclaim to rent arrears possession proceedings. Tenancy began May 2005.

Missing banisters, defective windows and defective front door throughout.

From May 2005, blockage in drain from bathroom meant sink and toilet did not drain. Toilet leaked through kitchen ceiling light below making electrics short circuit. Toilet renewed in December 2006, but blockage remained. Toilet began leaking again in late 2007, with further blockages and electricity problems in 2008. Toilet replaced again in January 2009.

From 2010 further problems with toilet, the water supply and the boiler. New boiler installed in June 2010 but not functioning for a month. Other repairs poorly carried out or to poor standard.

Damages assessed on a ‘broad brush approach’. £2500 per year for 3.5 years from mid 2005 to December 2008. £750 for 2009, as there was disrepair, even if no further complaints from T. £1000 per year for 2010, 2011 and 2012. Total £12,500.

Olinski v Islington LBC Lambeth County Court January 2013

This was a long leaseholder case, with Islington as the freeholder. The claimant’s lease started in 2002. (As a reminder, leasehold claims have a 12 year limitation period. The measure for damages is the notional open market rent obtainable for a private tenancy of the property – Earle v Charalambous though beware the approach of the TCC in Hunt & Ors v Optima (Cambridge) Ltd & Ors)

There was serious subsidence caused by tree roots. The front bay window and rear extension were pulling away from the main structure and the side of the rear extension was bowed. The partition wall to the bedroom was warped. In 2003 the pillars of the main entrance moved and had to be propped up.

There was scaffolding up for nearly 10 years. The claimant was in temporary accommodation in a two bed flat from 2006 to 2012.

The claim settled for £18,044. General damages of £15,544 for a period of 8 years and 4 months, including 6 in temporary accommodation. £2500 special damages. A re-inspection by a structural engineer after 6 months and any further works required were agreed. The Council were to indemnify the claimant against the cost of any further works arising from subsidence for a period of 15 years, and would not charge the excess on any further works carried out under insurance to the claimant.

Asghar v Barnet LBC and Minoan Investments Limited Central London County Court 23 January 2013

This was a non-secure tenancy of a one bed flat provided to the Claimant by Barnet, who had lease the property from the freeholder, Minoan.

There was rising and penetrating damp from March 2007 until the Claimant was rehoused in August 2010.

The Council defended on the basis that it had no record of complaints. However the file disclosed was found to be plainly incomplete and the lack of any note of complaint did not mean that none had been made. The period of claim was found to be from March 2007 to October 2009 when the Claimant was found to have refused a reasonable offer of accommodation.

General damages for the disrepair at 35% of rent of £386.04 per week, totalling £16,745.82 for 130 weeks.

The Claimant also brought a claim for psychiatric injury, on the basis that the depression and panic disorder from which he historically had suffered had been triggered by the disrepair. The Court found that the conditions were the main but not sole cause of the claimant’s condition. Damages were discounted by 20% to take the other causes into account. The case fell into the moderate JSB bracket (though without a prognosis). General damages of £10,000, reduced to £8,000. Total damages £24,745.82.

The Council’s part 20 claim against the freeholder was upheld to the full extent of the claimant’s damages award, despite the freeholder receiving a lower rent of £650-£720 pcm. There was no failure to mitigate by the Council as there was nothing in its lease then permitted it to carry out the structural works of repair.

Vaughan v MLs Properties Limited Edmonton County Court 23 May 2013

Assured shorthold tenancy of a two bed first floor flat in a block, beginning June 2009. Rent of £975 per month.

From November 2009 there was defective gas central heating. Dampness and water penetration to most rooms, exacerbating condensation and mould, defective plaster and problems with the electric installation.

Following works by the landlord’ contractors, defective double glazed windows in one bedroom and living room, and defective tiling in bathroom and WC.

Uneven floorboards with exposed nails and an unsafe fire escape from the start of the tenancy.

From September 2012, building works and scaffolding for the erection of a new storey immediately above, resulting in holed plaster, interference with quiet enjoyment and use of common parts. Communal garden overgrown and filed with debris from works, access pathway cracked and uneven.

At trial, the Judge decided that the landlord had breached an earlier debarring order and was debarred from defending on liability. The hearing proceeded on assessment of quantum, with the tenant’s evidence accepted wholly.

Damages: At about 30% of rent for 3.5 years, plus Simmons v Castle uplift giving general damages of £14,437.50. Special damages of £865. The claim limit of £15,000 was raised by the Court.

Read v Notting Hill Housing Trust Bow County Court 13 June 2013

Assured shorthold tenancy of two bed ground floor flat. Rent £289 per week.

A few months after moving in, the tenant reported that rats were getting into the property, also reported to the Council EHO. The entrance was through holes in the floorboards. There was also rising damp and a boiler which produced hot water only intermittently. The tenant was offered alternative accommodation about a year after reporting the rat problem. One child had gone to the grandmother because of the rat problem.

General damages based on the reasonable period for repairs to the floorboards being 28 days. On a ‘broad brush basis’ rat ingress was the worst problem. This case was on all fours with Dadd v Christian Action (Enfield) HA (1994) Legal Action 18, except that in this case the rats entered the flat. Damages at 80% of rent for the period 28 days after notification to a reasonable offer of accommodation being made to the tenant, 60 weeks, amounting to £13,872. For a further prior after the reasonable offer to termination of tenancy, damages at 20% of rent – amounting to £953. Total general damages £14,825

Special damages of £1000. Interest on damages £940. Less a set off for minor property damage of £150.

Claimant had beaten both her offers under Part 36, so a further 10% of damages £1,661 and Part 36 interest of £130 awarded.

Overall total £18,406

Aden v Birmingham City Council Birmingham County Court 3 July 2013

Secure tenancy of 3 bed house. Average rent £89 per week (£4,641 per year) Starting October 2006

Holed and defective plasterwork from start of tenancy until letter of claim.

Intermittent rainwater penetration into one bedroom (3 or 4 times a year in heavy rain)

Water penetration from bathroom into adjacent kitchen for 22 months

6 months leaking pipe in kitchen

Boiler breaking down once each winter and taking 1- to 14 days to repair.

Uneven, loose and defective flooring from start of tenancy

Defective extractor fan, perished window board and defective seals in bathroom. Other minor defects.

HHK McKenna did not make an order for specific performance, on the landlord’s assurance it would carry out the works in the claimant’s expert’s schedule.  He held that the extractor fan was part of the structure, so fell under s.11(1)(a), distinguishing the Circuit Judge’s decision noted  in O’Neill v Sandwell MBC [2007] EWHC 2004 (QB) (18/12/2007). On notice, the Claimant’s evidence was accepted and the reliability of the Council’s records was criticised.

On damages, using a ‘broad brush approach’, a six year period of loss, with some periods worse than others and some problems intermittent. About 38% of rent, being £1750 per year. Total £10,500. The Simmons v Castle uplift applied £1050, giving general damages of £11,550.

Special damages of £2100 (100% of claimed) and interest. Total £13,850.

Maloku v Southwark LBC Lambeth County Court September 2013

Secure tenancy of a studio flat. rent of £100 per week. Claim from mid 2008.

Dampness to walls and chimney breast of living room, with crumbling plaster. Damp spread to kitchen and hallway with further plaster damage. Repairs carried out in July 2011, but dampness returned in the same areas. Further repairs in February 2012.

Claimant and her daughter had lived with her mother between late 2010 and mid 2012 to avoid damp conditions.

Additional personal injury claims for the Claimant and for the Claimant’s daughter, based on expert evidence that the claimant had a history of asthma which had ceased to be troublesome. Damp, cold and mould had lead to a recurrence of her condition while resident at the property. The Claimant’s daughter suffered respiratory infections while in the property, with various A&E and hospital attendances, on the balance of probabilities these were caused by the conditions in the property and there was no evidence of long term effects.

Claim settled for £17,000 for the Claimant, inducing £700 special damages, and £3,000 for the daughter.

Voysey v Ellas Croydon County Court 20 September 2013

Assured shorthold tenancy. Rent of £1050 per month. Claimant living there with adult daughter and son, so registered as blind.

Defective boiler for period of 3 and a half months. No heating or hot water (Claimant had to fill bath with saucepans of boiling water).

Minor but persistent leak to conservatory for 29 months

Defective drainage in bathroom for 24 months.

Landlord was notified of condemned boiler by British Gas and local council but refused to repair, claiming lack of funds.

After contested trial, award of general damages of £1250 for the 3.5 months lack of heating and hot water, £3000 for the 29 months of leak to the conservatory, £500 for two years of faulty drainage to bathroom. Total £4750.

No mention of Simmons v Castle uplift or a percentage rent assessment.

Comment

The overall message seems to be that the courts are still, in general, disposed to take a ‘broad brush’ approach, rarely (but sometimes) carrying out a detailed breakdown of quantum by issue, severity and duration in terms of percentage of rent. That said, it is also clear that the rent is borne in mind as a measure. There is also the odd award of ‘£500 for the children’ which doesn’t seem to have a basis.

It is worth noting that there is  some variation in quantum for similar issues, as a percentage of rent, though not at the extremes that have been seen in the past, there is an increasing convergence on the level of awards. That said, it seems that if you must be a tenant suffering disrepair, Birmingham is quite a good place to be suffering it.

But there is another theme, which is that landlords relying on the deficiencies of their own records to argue lack of notice, seem to be getting short shrift. ‘If it isn’t in our records, it didn’t happen’ is not flying as a defence on notice.

The extractor fan issue in Aden v Birmingham is interesting. I have encountered argument on this and no doubt will come up again.

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 Shorthold tenancy, assured-tenancy, Disrepair, Housing law - All, Leasehold and shared ownership, Nuisance, secure-tenancy and tagged , .

One Comment

  1. Dear Giles Peaker
    Thank you for your insightful and well researched commentary. Having just got into Housing Law especially as it relates to Housing disrepair, I have learnt a lot from reading your legal articles. This was very useful and much appreciated and I look forward to reading more of your commentaries.
    Please keep up the good works.

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