Perhaps illustrating the need for the Court of Appeal to deliver the judgment in Moorjani (see preceding post), the December 2015 issue of Legal Action has Beatrice Prevatt’s excellent annual  ‘housing repairs update’.  We have covered many of the cases noted in the update already, but there are some county court cases unreported elsewhere, remarkably this time including some Councils taking cases to trial. As ever, our thanks to Beatrice Prevatt and Legal Action.

Kwegan and Kwegan v Industrial Dwellings Society, Clerkenwell and Shoreditch County Court,19 March 2015; and Central London County Court, 21 September 2015

K & K claimed for disrepair under s.11 LTA 1985 and express repairing obligation in their tenancy agreement. The agreement contained a section headed ‘Services’.

“IDS shall provide the following services in connection with the Premises for which the Tenant shall pay a Service Charge – landlord’s lighting, cleaning of communal areas, electric gates, door entry system, refuse disposal, depreciation of entry gates and courtyard service.”

The Agreement also provided under landlord’s obligations:

“Repair of Common Parts – To take reasonable care to keep the common entrances, halls, stairways, lifts, passageways, rubbish chutes and any other common parts, including their electric lighting, in reasonable repair and fit for use by the Tenant and other occupiers of and visitors to the Premises …”

The main items in the claim were:

• An inoperative entry-phone system and electric gates, which allowed entry into a courtyard, giving access to the Kwegans’ house and those of their two neighbours;
• A defective heating and hot water system;
• Water penetration into their living room from the shower on the floor above.

The landlords counterclaimed for damage to doors and kitchen cabinets, and for unauthorised electrical works.

At first instance, the District Judge dismissed the disrepair claim. She found that the gates belonged to the freeholder and that IDS had no rights over the gates and entry-phone and no right to do anything in relation to them. There was no duty on IDS to repair or to reinstate the gates.

On the heating and hot water, the DJ found that IDS had not acted unreasonably in carrying out repairs for a number of years before finally replacing the boiler.

In relation to the water leak from the shower, she found that although the shower had been leaking into the living room for five years, IDS had acted reasonably in attempting to locate the source of the leak and that it was a particularly difficult problem to solve.

The DJ allowed the counterclaim in part, namely in relation to a damaged door and a damaged kitchen unit.

The claimants were ordered to pay the defendant’s costs.

K & K then appealed on two grounds:

The DJ was wrong to find no obligation on IDS to repair the electric gates and entry-phone

The time taken to fix the leaking shower could not be reasonable.

Permission was granted on the first ground only.

The appeal was allowed on the basis that the electric gates and entry-phone system were an integral part of the common entrance and therefore fell within the defendant’s express repairing obligations. This was regardless of the landlord’s rights against the freeholder to carry out any such works.

Given that she found they were covered by an express rather than an implied term, she did not have to go on to consider whether the landlord had used all reasonable endeavours to obtain rights from the freeholder that would have allowed it to carry out repairs (LTA 1985 s11(3A)).

The question of quantum was remitted to the District Judge for consideration.

It appears that the landlord is seeking permission from the Court of Appeal for a second appeal.

Comment

This is an interesting counterpoint to Kumarasamy (now to be heard by the Supreme Court in May 2016) on landlord’s obligations for parts of the building not owned by the landlord. But given the express terms of the agreement, rather than a reliance on s.11(1A) LTA 1985, I suspect the landlord might be on a hiding to nothing. Nonetheless, one to keep an eye open for.

DR v Southwark LBC, Central London County Court, 18 July 2015

We reported this one at first instance. The council was found liable for saturated plaster, even though the cause of the saturation was probably condensation damp.

At first instance, the District Judge awarded damages of 20 per cent of the rent for a three year period (approximately £3,000) – a three year limitation being imposed due to a finding that a claim for personal injury hd been made, though without an award of damages in that regard.

The council appealed to the circuit judge, on liability and on quantum.

The CJ upheld the finding on liability but reduced the award of damages to £1 a day or £365 a year.

Comment

I have seen the appeal judgment and it is not, to be honest, a great judgment – the reasoning is unclear and in particular the basis for the reduction in damages is wholly lacking a rationale. In view of Moorjani in the Court of Appeal, this level of quantum surely simply can’t stand. On the plus side, the finding on liability – through saturated plaster being s.11 disrepair in and of itself – stands.

Uddin v Islington LBC, Clerkenwell and Shoreditch County Court, 6 May 2014

This case went to the Court of Appeal – our report here. But the CoA apparently left the first instance judgment on quantum undisturbed. This is the first instance judgment.

The claimants were tenants of  a four-bedroom maisonette, on the basement and ground floor of a converted house. They claimed damages for rising dampness that affected their home from October 2004 until mid- September 2009, when remedial works were eventually carried out.

HHJ Mitchell found the council liable for breach of its repairing obligations during this period. The damp was visible in defective plaster work and black mould growth in the bedroom, which felt cold and smelt. On the basis that it was the basement that was affected, he awarded 30 per cent of the rent minus a six-week period by reason of a failure to provide access, totalling £8,801.53, and special damages of £4,022.86.

There was a further award for a six week period of breach of covenant of quiet enjoyment on the basis that the Council had carried out works unreasonably, despite no specific claim in this regard having been pleaded. The CJ ‘took judicial notice’ of the fact that it is possible to limit the effect of the dust by sealing the room where work was carried out and using industrial vacuum machines to remove the dust from the air as the works were carried out. If these could not have been used, the council should have provided temporary housing. Merely using ineffective dust sheets was not sufficient.

He was satisfied that, for five weeks, the tenants suffered serious inconvenience because the council failed to prevent the dust in the premises impacting on them. The premises were virtually uninhabitable, with the tenants having to bathe and use the lavatory at the homes of family and neighbours.For an additional week, there were workmen in the house when the work should have been completed previously.

The CJ awarded an amount equal to the rent for five weeks and 25 per cent of the rent for the additional week, totalling £702.03.

There was also the Simmons v Castle 10 per cent uplift on all the general damages of £965.36.

Interest at 2 per cent on both general and special damages from issue, totalling £956.

Thomson v LB Southwark, Lambeth County Court, 30 September 2015

The tenant of a flat in a lock complained of water penetration from the flat above, and from the outside from 2009, ill fitting and draughty windows an intermittently blocked kitchen sink and defective works to the bathroom.

Subsequently, the building and her property started to suffer from subsidence, resulting in cracking, falling plaster and uneven floors.

In August 2015, the claimant’s expert noted a significant deterioration of the condition of both the property and the building in comparison to his first inspection in June 2013.

At trial, the DDJ awarded general damages amounting to 20 per cent reduction in rent for the period from 1 January 2009 to 23 June 2013, amounting to £4,659.59. For the period from 30 June 2013 to 30 September 2015, the court awarded a 40 per cent reduction in rent, amounting to £5,521.25, giving a total of £10,180.84. Applying the uplift of 10 per cent, the award for general damages was £11,198.92.

McLoughlin v Tower Hamlets LBC, Clerkenwell and Shoreditch County Court, 15 January 2015

The tenant of a two-bedroom cottage complained of rotting windows, a defective boiler and damp to the kitchen and bedrooms from 2007. In addition, the tenant suffered a gas leak in 2013, reportedly caused by the damp corroding a copper pipe.

At trial the District Judge made an award of damages as follows:

• a 30 per cent reduction in rent for the damp and defective windows, making a total award of £16,359, including the 10 per cent uplift;

• a £1,000 one-off payment for the gas leak;

• £750 in respect of special damages, which was two-thirds of the replacement cost, even though the tenant had no receipts, as the claim was not inflated.

The claimant beat her Part 36 offer and was awarded costs on an indemnity basis.

Gabriel v Investinc Ltd, Clerkenwell and Shoreditch County Court, 23 July 2015

The tenant claimed in respect of water penetration into his flat, apparently through the roof. The cause of water penetration through the roof was not agreed by the two experts.

The landlord counterclaimed for some rent arrears, which were admitted, and for deep-cleaning and repairing the property at the end of the tenant’s tenancy.

At trial, the District Judge dismissed the landlord’s argument that the fact that the cause of water penetration was not agreed meant disrepair was not proven and found that a roof that allowed water to penetrate through it was a roof in disrepair.

She also found that the roof was not part of the premises let to the tenant but remained in the control of the landlord, so that it was immediately liable for the disrepair (BT plc v Sun Life Assurance Society plc [1996] Ch 69).

However the effects of the disrepair were found not to be severe.Photographs only showed slight damage and the alleged smell of damp was not commented on by the tenant pre action.

General damages awarded of 22 per cent of rent, which amounted to £2,800 a year, apparently including the 10 per cent uplift added because of the date of the tenant’s CFA was post April 2013 (Simmons v Castle). Interest was added to the award of damages.

The counterclaim in relation to deep cleaning and tenant damage was dismissed on the basis that the cleaning required at the end of the tenant’s nine-year tenancy was no more than would reasonably be expected.

Comment

The period of the claim, and so the total damages, isn’t clear, and neither is whether the rent arrears counterclaim was beaten. For the sake of the Claimant’s solicitors, on a CFA, one must hope so. In any event, it must have been squeaky bum time.

Espute v Lambeth LBC 

The tenant of a three-bedroom maisonette complained of mould growth present in the entrance hallway, kitchen, and lounge ceiling, heavy mould growth on the stairway to the upper floors, and some mould in each of the three bedrooms.

A surveyor’s report found that the growth was caused in part by water leakage and in part by condensation aggravated by the poor design of the property, principally a solid concrete ceiling above the stairwell.

A global settlement of £13,000 was agreed in April 2015 for the leaks and damp for six years prior to issuing.

The settlement amount was the equivalent of a rent rebate of 40 per cent.