Disrepair damages update

With very grateful thanks to Beatrice Prevatt’s annual disrepair update in the December 2014/January 2015 Legal Action, here is a bumper pack of County Court cases and settled cases on damages for disrepair.

Armes v Wheel Property Co Ltd, Clerkenwell and Shoreditch County Court, 17 May 2013
Claimant had been the protected tenant of a two bed flat in a Victorian terrace conversion for 30 years. Current rent was £191 per week.

There was dampness to walls and floors in the living room, kitchen, bathroom and one of the bedrooms for many years. This had caused some plaster to ‘blow’. The housing file recorded a number of leaks into the property from various sources and the tenant asserted that she had notified her landlord about these.

Following the tenant starting a claim, dehumidifiers were installed at the property in August 2012 to confirm that the damp found in April 2012 was not caused by a flood, which took place in August 2011. The parties’ experts subsequently agreed that the property suffered from disrepair caused by penetrating/ rising dampness and agreed a schedule of remedial works.
The matter went to trial where the landlord disputed notice, but lost on that point.
The judge awarded £18,161 and ordered specific performance of the schedule of works.
Damages were:
General damages of £15,701 (6 years x 30 per cent rental liability reduction).
Special damages of £2,460.

 

Nzau v Gani, Croydon County Court, 21 November 2013
Private tenancy commencing in late 2006. The Claimant tenant was evicted in August 2012. Monthly rent of £1,150.

The Claimant alleged damp and water penetration from the start of the tenancy to the kitchen and bathroom (partly situated under a balcony). There were also historic issues with a defective boiler, and other more minor issues. In February 2011 the Council had served an abatement notice (s.80 EPA 1990) requiring the water penetration to be addressed.

At trial of the claim, Deputy District Judge McCloskey found the landlord liable for the water penetration into the kitchen and bathroom as well as the heating defects, from January 2007 [allowing a reasonable period to remedy, presumably. Though if the defects preceded the tenancy, this is surely questionable. – NL].

Damages for the water penetration were discounted by 50 per cent because there was no conclusive evidence from either side about whether the damp at the property was a mixture of condensation damp and penetration damp.

Damages: Water penetration: Over the 24-month period from January 2007 to December 2008, general damages were assessed at ten per cent of rent (following the 50 per cent discount), making an award of £975. For the period from January 2009 to March 2012, when there was more disrepair at the property, damages were assessed at 50 per cent, which was reduced to 25 per cent to account for condensation, giving damages of £7,717.
For the period from April 2012 to August 2012, damages were assessed at five per cent, which was discounted to 2.5 per cent, giving a figure of £101.
Total award of £8,793 for water penetration.
Defective boiler awarded damages of £10 per week from November 2006 to October 2009.
(Averaged over the year). Total: £1,560.
Special damages claim, (reduced by a third) in the light of the condensation: £550.
Overall total £10,903.

 

Clark v Affinity Sutton Homes Ltd, Barnet County Court, 28 March 20146
Claimant was the tenant of a one-bedroom flat from 29 November 2004 until 10 February 2014 when he was decanted. The tenant brought a claim alleging damp penetration from January 2007. The Defendant had carried out remedial works in 2008 and again in January 2013, but without resolving the issue.

The expert evidence found water penetration to the bathroom with condensation dampness and mould growth to the living room, bedroom and kitchen. However, following the claimant’s decant (and shortly before trial) it was found that the damp problems had been caused by a defective damp proof course.

The claimant suffered from poor health. He had had chronic obstructive pulmonary disease since 2006, rheumatoid arthritis since 2007 and also had bladder cancer.

A default judgment was obtained against the defendant on 14 October 2013. Remedial works were carried out in 2008 and again in January 2013. The expert evidence records water penetration to the bathroom with condensation dampness and mould growth to the living room, bedroom and kitchen. However, following the claimant’s decant it was found that the damp problems had been caused by a defective damp proof course.

Deputy District Judge Gillman awarded damages for the period 1 April 2007 to 31 August 2008 at 30 per cent of the rent and for the period from 1 January 2012 to 10 February 2014 at 45 per cent of rent. No award for the period from September 2008 to January 2012, as the Court found that on the balance of probabilities it was unlikely that there were any significant problems in this period. There were no complaints logged during this period and not a single e-mail, although there had been extensive e-mail correspondence in 2007 and again in 2012/13.

General damages were £6,779.88, which was uplifted by ten per cent (Simmons v Castle) to give a total general damages award of £7,457.86.
Special damages £2,667.60 (discounted the figures claimed by 25 per cent for depreciation, save in respect of the carpet, which was allowed in full as it would be difficult, if not impossible, to purchase second-hand carpets).
Plus £20 per week for the use of a dehumidifier 24 hours a day for eight weeks (having received details of average running costs).
Plus £5 per week for additional heating costs for 183 weeks in the six years claimed.
Total special damages £3,742.60.
Total award: £11,200.46.

 

Wade v Dormeuil, West London County Court, 8 August 20148
Private tenant of a two-bedroom flat, from 19 October 2010 until 12 October 2013. Rent £18,000 pa (£1500 per month). Landlord brought possession proceedings and tenant counterclaimed in respect of disrepair.

The tenant sought damages for a defective roof/gutters causing water penetration to the rear bedroom and hallway, with some intermittent penetration to the main bedroom and some current dampness to the living room, a defective flush to the toilet, two gas leaks resulting in the lack of hot water for five days, a slow water flow into the water tank, defective and cracked plaster, defective windows to the living room, a defective radiator and some external defects, namely, defective gutters, cracks to the render and rot to the joinery.

The defence to the counterclaim was struck out and the case proceeded solely on the basis of the tenant’s evidence.

District Judge Rowlands found all the claims made out and identified the three main claims as follows:
The damp and cold to the living room, which meant the tenant had to buy additional covers to sit underneath.
The problem with the toilet, which did not flush to the extent that the tenant had to use plastic gloves to clear the toilet for approximately two years.
The damp to the second bedroom, which could not be used for any purpose.

He took account of the fact that the tenant had moved in with her autistic son, who was then aged four, to give him more space, and had been distressed at not being able to give him the experience she wanted. He questioned why the tenant had not given up the tenancy [this is surely nonsense, no requirement to give up tenancy as mitigation] but accepted that she was unable to raise a deposit, would have had difficulty finding other accommodation, and was realistic in her hope that taking proceedings would have caused the disrepair to be rectified.

Damages:
General damages: 40 per cent of the rent for the first two years when all the problems existed, and 25 per cent of the rent for the third year when the toilet had been fixed. This amounted to a total award of £18,900, plus an additional ten per cent (Simmons v Castle), making a total of £20,790.
This was substantially in excess of a Part 36 offer that had been made, meaning an additional ten per cent in damages, plus 5.5 per cent interest, making a total award
of £24,203.35.
Costs up to the expiry of the Part 36 offer on a standard basis and from the expiry of the Part 36 offer onwards on an indemnity basis, and interest on those costs at 5.5 per cent.

 

Whittingdon v Uddin, Clerkenwell and Shoreditch County Court, 14 August 2014
Private tenant. Claim for three years of disrepair, breach of quiet enjoyment and harassment. For a period of three years the premises suffered from defective windows throughout, water penetration in the bedroom, some internal leaks in the kitchen and WC, and some external disrepair. The landlord failed to carry out any repairs despite repeated complaints.

At trial, District Judge Sterlini awarded:
General damages of £1,800, being a 100 per cent reduction in the rent for a six-week period in November and December 2013 when the claimant had to move out because the premises were uninhabitable and a global award of £7,500 to reflect the other items of disrepair over a period of three years (including a 17 per cent reduction in rent during this period);
£1,000 for defective chattels that were provided under the terms of the tenancy agreement and that were broken but not repaired/replaced
£350 for the cost of plumbing repairs paid for by the tenant.
£16,000 was awarded in respect of the harassment claim.

 

Holmes v Lambeth LBC, Lambeth County Court
Leaseholder of a two-bedroom maisonette complained of disrepair from 2008. There had been a number of external defects including an excessive gap between the brickwork and window frame to one of the bathroom windows and fungal decay to two other windows. There was also spalled brickwork over the main structure at the front of the premises, missing and defective pointing to the right of the chimney stack, cracking to the chimney stack itself, missing slates to the roof covering at the rear and cracked areas of concrete to the rear concrete staircase. For a period of three years there was water penetration through the roof causing cosmetic damage to the plaster in the eaves storage area and relatively minor staining to the plaster and decorations on the stairs.

The defects mainly affected the exterior of the premises and therefore the inconvenience caused to the leaseholder was minimal. The cost of repairs was estimated to be £9,000.

The claim settled in October 2014 at the point after which listing questionnaires were filed. Special damages were claimed in the region of £1,400. The second-hand value of the special damages was worth in the region of £500. Settlement negotiations were entered into on the basis of Earle v Charalambous [2006] EWCA Civ 1090, 28 July 2006, by using the starting point for calculating damages for leasehold premises as a percentage of the market rental value. The average market rental value for a comparable property in the area was in the region of £19,500 per annum (£1625 per month).

The local authority made a global offer in the sum of £15,000 and also agreed not to seek to recover the leaseholder’s share of service charges in respect of the works (these would have been approximately 50% of the £9000). Taking special damages at full value, this amounts to some 12% of rent for the full period of claim).

As part of the settlement Lambeth also agreed to pay for an inspection by the single joint expert and carry out any works found to be incomplete.

Comment
Always worth remembering that leaseholder claims can go back 12 years, not 6. And the measure of quantum is the notional open market rent, which can be substantial. However, the leaseholder may well be liable for a proportion of the cost of works through the service charge, and, as in this claim, that should be dealt with.

 

Coleman v Peabody Trust, Lambeth County Court
A tenant’s two-bedroom flat had cracked and defective windows throughout the premises (five in total), which were draughty, from end of 2009 to August 2014. The claim settled in August 2014 for £7,500. The rent was £124.17 per week (£6,456.84 per annum) so this settlement equates to approximately 23 per cent of the rent.

 

Lawrence v Lambeth LBC, Lambeth County Court
Secure tenant of four bedroom flat brought a disrepair claim, limitation took effect from May 2007.

Disrepair alleged was that the windows at the premises were in poor condition with four of the windows rotting away, letting in water and with mould growth around them. Patch repairs to the windows were carried out in June 2012. The central heating was defective for several years. The claimant could only use the heating and hot water together and was unable to use the services independently of each other. It also took quite a while for the water to heat up and none of the radiators heated up properly. Some of the radiators did not heat up at all and some of them only heated at the bottom. The heating was remedied by the Defendant in December 2011. There was an intermittent leak under the sink and from behind the toilet. The premises were infested with mice for around four years, possibly coming from underneath the floorboards.

The tenant suffered from constitutional asthma and recurrent bronchitis, which had been exacerbated by the cold and damp conditions at the premises, and was admitted to hospital with shortness of breath on two occasions and thereafter experienced symptoms of central chest pain, poor respiratory function and nocturnal coughing.

Post issue, the landlord agreed that some of the internal works could not be done with the tenant in occupation. The tenant was prioritised for a permanent transfer but no suitable properties became available and so the landlord started works in or around late August 2013 with the tenant still in occupation.

Lambeth defended on the basis that the standard of repair was commensurate with the property’s age, condition and status as public sector housing and that works were carried out as required when notified to the landlord. It was also alleged that the tenant neglected the garden to the extent that overgrown ivy had caused damage to the windows.

The claim settled within a few weeks of the trial date, in June 2014, for a global figure of £12,500.
Components of damages:
£1,500 for exacerbation of asthma due to the damp conditions;
£9,500 general damages, amounting to £1,583 per annum for six years, where the rent was
£144 per week. This equates to approximately 20 per cent of the rent for the full period of the claim;
£1,500 special damages, most of which was a contribution towards the tenant’s care costs.

A substantial discount was agreed in respect of the special damages as the tenant had smoked for most of her adult life. The defendant also agreed to carry out additional works, above the repairing obligations, as part of the settlement including decorating throughout, dry lining of walls, repair to the boundary fences and insulation of the loft.

 

Thomas v AJ Bradburn (acting as receiver for Adelphi Properties Ltd), Manchester County Court, 17 October 20134
Private shorthold tenant of a two-bedroom mid-terrace house from 5 November 2007. His rent was £85 per week until April 2009, when it went up to £95 per week.

There were problems with the hot water system and the storage heaters from the start of the tenancy. Central heating was installed in March 2008 but that did not work properly and the landlord failed to repair it satisfactorily until May 2011.

From late 2008 the roof had a hole in it, which allowed water to leak through on to the ceilings upstairs. Damp patches developed and water leaked into the bathroom. Patch repairs by the landlord were inadequate. The roof problems had worsened by late 2009 such that water leaked in through the ceilings and the claimant’s bedroom ceiling collapsed. The claimant had to sleep downstairs for a period of a year because of the leaks and dampness and state of his bedroom ceiling. The claimant had a pre-existing diagnosis of asthma, which he complained had been aggravated by the condition of the property.

At trial, District Judge Moss found the landlord liable.

Damages found:
£750 for the defective storage heaters and faulty hot water system for the period November 2007 to the end of March 2008 (equating to around 40 per cent of the rent for that period).
£3,750 for the intermittently functioning heating and hot water system from November 2008 to May 2011 (equating to approximately 30 per cent of the rent for that two-and-a-half year period);
£1,500 for the disrepair to the roof and the associated state of the ceilings upstairs and of the damp from late 2008 to late 2009 (equating to approximately 30 per cent of the rent for that year).
£2,500 for the leaks and dampness between the end of 2009 until the end of 2010 when the position worsened significantly and the claimant had to sleep downstairs and was unable to use the upstairs of the property (equating to approximately 50 per cent of the rent for that year).
(In total, between the end of 2008 and the end of 2009 general damages of approximately 60 per cent of rent. For the period from the end of 2009 to the end of 2010 general damages of approximately 80 per cent of rent).
£850 for the aggravation of asthma by the conditions of the property, the aggravation being to the extent of 20 per cent.
£1,250 in special damages.

 

Comment
it is good to see a greater adoption of the English Churches v Shine approach of a notional reduction of rent. For social tenants, whose rents have risen considerably, this makes more sense than the old Wallace tariff, as well as making sense in law.

There also seems to be a greater consistency of awards than in previous years, though as Wade v Dormeuil shows, there are District Judges willing to entertain nonsense arguments – not giving up a tenancy cannot be a failure to mitigate loss.

Leasehold disrepair will be a growing trend, certainly I have quite a few case, but there are uniqoe issues. While the damages will be higher, based on notional open market rental value (Earle v Charalambous) and potentially for a 12 year period, there will be the potential for a proportion of the costs of work to be recharged to the leaseholder. This needs to be dealt with, and I suspect many practitioners won’t know how.

Legal aid is all but unavailable, except for counterclaims to rent arrears possession claims. Legal Aid will only cover an order for works for urgent, health threatening, defects, not a damages claim. The flip side of this, for defendants, is that they should be aware that a claim funded by a CFA means that the Claimant’s solicitors are pretty confident about their case.

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, secure-tenancy and tagged , , .

10 Comments

  1. Thanks for the update Giles…..out of interest, does it make any difference in an award if the rent is paid for by Housing Benefits?

  2. Pingback: Disrepair damages update – NearlyLegal | Current Awareness

  3. Pingback: Landlord Law Blog Roundup from 19 January

  4. Is is appropriate to deploy the provisions regarding personal injury in the Pre-action Protocol on Housing Disrepair in anticipation of proceedings in the case of a son of the tenant, still living in family with her, who has reached the age of majority (and must therefore issue proceedings in his own name) and has suffered a flare-up of a disease to which he is pre-disposed, the flare-up according to medical evidence being attributable to prolonged dampness, mould etc., or must one adopt the Pre-action Protocol on Personal Injury instead, please? Thank-you

  5. Could I please get some information regarding an infestation in a porperty me and my daughter was forced to leave what help can I get regarding compensation please.

  6. Giles
    I am dealing with a disrepair case reaching it settlement stage, the tenant was decanted pending works by the landlord who provided the temporary accommodation. Can general damages be assessed at 100 percent diminution of rent when the tenant was out of the property or can it be argued that tenant’s inconvenience and loss of value of tenancy had ceased due to the provision of temporary accommodation pending works?
    Thank you.

    • Neither. There is clearly some degree of inconvenience, but on the other hand, the loss of amenity of an uninhabitable property has been mitigated by provision of (adequate) temporary accommodation.

      In English Churches v Shine, the court of appeal upheld an award of 15% of rent for a period when the tenant was in temporary accommodation while works were carried out. https://www.bailii.org/ew/cases/EWCA/Civ/2004/434.html

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