Mason v 1) Olivera and 2) Santana, Claim no: K2PP0132 (15th December 2023, County Court at Clerkenwell and Shoreditch)

Our grateful thanks to Garden Court Chambers for details of this judgment on a housing conditions counterclaim to a claim for possession.

We’ve previously seen a county court claim for unfitness for human habitation involve an award of 100% of rent in general damages, on the basis that it was a binary question – either the property was fit for human habitation, or it was not. If not, then it couldn’t be said that the tenant had derived any value from the tenancy.

This is a second county court judgment on the issue and the same conclusions appear to be reached. Two is sufficient to be a trend…

The landlord, Ms Mason, had brought a possession claim in respect of an assured shorthold tenancy of a one bedroom flat, alleging rent arrears of some £55,000, and on grounds 8, 10 and 11 Schedule 2 Housing Act 1988. The second defendant, Ms Santana counterclaimed for an injunction for works, and damages for disrepair and, from 20 March 2020, unfitness for human habitation, and failure to protect the deposit.

The flat was on the Aylesbury estate, in a block scheduled for demolition in 2026. This is a Southwark Council building.

The expert found:

Consistent failure of heating supply from the communal heating system

Leak through the ceiling of the lower level of the flat

Condition of the bathroom unsanitary

Bathroom damaged by foul water leak through the ceiling. Bath leaking over the floor when in use. WC leaking. Both damaging the bathroom floor. Bathroom sink detached from wall.

Mould growth to metal single glazed window frames.

Kitchen sink unusable.

The property was not only unfit for human habitation, but uninhabitable.

On 18 October 2023, Southwark had served an emergency prohibition order due to the state of the property. Ms S then had to live in temporary accommodation which was some distance away and for which she had to pay towards the rent, while remaining liable for the rent on the flat.

The possession claim was struck out when Ms Mason failed to pay the trial fee. At the re-listed trial hearing on the counterclaim, Ms Mason failed to attend.

Damages were awarded as follows:

• the inception of the tenancy– 19 March 2020 – 75% of the rent, totalling £22,726.56;
• 20 March 2020–17 October 2023 – 100% of the rent on the basis that the property was not fit for habitation, totalling £47,261.12; and
• 18 October 2023–15 December 2023 (the date of trial) – 150% of the rent, the judge having accepted that the Second Defendant had been suffering additional inconvenience since her move to interim accommodation due to its location and the fact that she had been liable to pay the rent for the Aylesbury Estate property in addition to the interim accommodation, totalling £3,091.68.

The 10% Simmons v Castle uplift gave a total on general damages of £80,387.29

On the deposit protection, the landlord was ordered to replay the £1,100 deposit, and three times the deposit in respect of both the original tenancy, and when it became a statutory periodic, totalling £6,600.

Comment

The usual disclaimers apply – this is first instance county court and not a precedent. But it is interesting to see two such decisions follow the same logic.

It is also worth bearing in mind the severity of the issues in this case, such that the property was uninhabitable (and an emergency

The additional 50% of rent over the 100% award for the period after the prohibition order may reflect additional inconvenience. I might have been tempted to address the additional rent payments as special damages, rather than rolling into the general damages sum.

It is also worth noting that the landlord is liable for the adequate supply of heating even when, as here, the supply is through a communal system by the superior landlord.