Just a quick note on a County Court disrepair trial with an interesting finding on damp plaster

DR v Southwark LBC, Lambeth County Court 11 June 2014

DR had brought a claim for disrepair including for damp, saturated plaster to the external wall in the bathroom. There was, it appeared from first inspection, a mix of damp penetration and condensation damp.

The expert inspection before trial included carbide testing to the core of the wall which showed that while both the external surface and the internal surface and plaster of the wall remained wet, the core of the wall was dry, showing no water penetration.

At trial, the Claimant conceded that the majority of the damp in the property was caused by condensation, but maintained that Southwark was liable for the damp plaster in the bathroom, relying on Grand v Gill.

Southwark argued that wet plaster was not disrepair, relying on Post Office Properties v Aquarius Ltd [1987] 1 All ER 1055 CA. Southwark argued that although the plaster may be wet there was no disrepair in that it was of same standard that it would have been before. There was no deterioration to the structure. The case was similar to Quick v Taff Ely in that the main issue was condensation.

The expert’s report had described the plaster as ‘saturated’. The Claimant argued that this meant it was not of the same standard as when built.

Th court held that the saturated plaster was in disrepair – “It cannot be said that the level of humidity or moisture retention, whatever the cause, meant it has not reached a stage of being in disrepair”.

Damages for this and the wet front elevation external wall, were assessed at 20% of rent, reduced to 10% for the period after Southwark had carried out some works which had improved conditions at the property.

Comment
It is interesting to see a court actually approach this issue. The finding that saturated plaster was in disrepair, regardless of the cause, I think has to be right, following Grand V Gill. At the same time, it makes a pure ‘condensation/Quick v Taff Ely‘ defence by the landlord more difficult, if the plaster in a saturated condition. I suppose there may be an argument if it can be shown that tenant’s conduct exacerbated condensation, but that would be tricky to prove and would likely be by way of set-off or counterclaim, rather than a defence on liability per se.

And, although the conditions in the property were very unpleasant, with constant significant mould growth, 20% of rent is a decent figure for quantum for what was primarily saturated plaster to the bathroom.

Some more details on the arguments in the case are here and our thanks to Charlotte Collins at Anthony Gold for bringing this one to our attention.