Godagam & Edirisinghe v Hanson. Mayors & City of London County Court. 3 May 2024 (Unreported, copy of judgement is here.)
Our grateful thanks to Nick Bano of Garden Court for a copy of the judgment.
A county court Circuit Judge judgment on a possession claim with disrepair and unfitness for human habitation counterclaim. Very interesting both as a relatively rare CJ decision on disrepair/fitness, and for the CJ’s viw on the appropriate approach to quantum for unfitness.
The possession claim, after various twists and turns, ended up as for rent arrears only, grounds 8, 10 and 11, and with the second claimant, the owner of the property added as second claimant/Part 20 defendant at start of trial. Arrears of £41,286 were claimed, on a rent of £260 per week. The claim had started in 2020.
Mr Hanson’s tenancy began in 2016. The description of the property is
The Unit in question is positioned in the back garden. It is shown on a plan (at page 1 and 140B of the Claimant’s bundle) marked as “Garden Studio”. The Garden Studio is a small room shown on the plan as having a front door and a very small window next to it. It is common ground that it also had a Velux rooflight in the ceiling. The plan shows a toilet and a sink in the room. Adjacent to that room was a storage area shown on the plan which formed part of the same physical building but not accessed from the studio room. It is marked on the plan as “Open Storage (Bicycles, bins and stroller)”. (…)
Sometime in 2017, Mr Hanson broke through the wall between the “Garden Studio” and the “Open Storage” Area and extended his Unit into that area as well – putting up new sliding doors and installing kitchen units in what had been the storage area.
It was, then a ‘bed in a shed’, in the garden of a terraced house which had been turned into 9 separate units in about 2015, though not licensed as an HMO until 2017.
The tenancy agreement had a clause purporting to restrict the tenant’s right to any set off against the rent. This was not relied upon by the claimants, with the Judge finding this was rightly so, as “such a provision would have been unfair in a lease such as this given the terms of section 62 the Consumer Rights Act 2015,”
The disrepair and (from 20 March 2020) unfitness for human habitation relied up by Mr Hanson was extensive and set out in a single joint expert report from 2022 and a report by LB Camden from 2019, which had eventually resulted in a prohibition order (Mr Hanson remained in occupation).
In his conclusions, Mr Flowers indicated that in his expert opinion that it was unlikely that the building was constructed in accordance with Building Regulations and as such it would have poor insulation, poor ventilation and generally provide poor accommodation for the resident.
He reiterated in his conclusions that at the time of his inspection, there was no washing facilities, no hot water, poor provision for heating (a fan heater) and a dangerous electrical installation with part of the building being run via extension leads from the other part of the building. He also noted that there was an active rodent infestation which was significantly harmful to the health of the resident which required eradication.
In the light of the above, he concluded that it was his belief that the building did not satisfy the criteria for the Homes (Fitness for Human Habitation) Act 2018 (“the 2018 Act”), since it was originally created.
Somewhat remarkably, the claimants had obtained a surveyor’s report in 2019, which was exhibited to the particulars of claim, which stated variously
i) The solid exterior walls were uninsulated and exhibited damp penetration requiring substantial repair or rebuilding.
ii) The roof was inadequately insulated and was dilapidated.
iii) Fire protection was inadequate.
iv) An efficient water and space heating system was required.
v) The electrical system required certification and necessary upgrading or re-wiring.
vi) The bathroom ventilation fixtures and fittings and waste water installation required repair or replacement or upgrading.
vii) The whole unit required re-decoration.
LB Camden’s inspection in December 2019 had resulted in a ‘hazard awareness notice’, which raised
i) Excess cold hazard based on the fact that there was no fixed heating in the flat, the rooflight did not close properly and there was inadequate wall and roof insulation.
ii) Domestic hygiene (pests and refuse) hazard based on the fact that there was a large rat hole in the front garden and evidence of rat runs in the external yard areas.
iii) Personal hygiene sanitation and drainage hazard based on the fact that the shower did not work, the toilet was not attached to the wall properly and the sink was coming away from the wall.
iv) Electrical hazards in that there was no electrical installation condition report or records for the installation and the works carried out on the Unit, there was overloading of sockets throughout the Unit and light switches hanging off the walls, and wires going through an open window of the Unit to the main house.
v) Food safety hazard based on the kitchen in the original part of the Unit being in poor condition with damaged work surfaces and cupboards.
This resulted in a Prohibition Order in 2020
The claimant’s defence to the counterclaim was:
i) They say that the disrepair and/or poor condition has been caused by Mr Hanson in particular by him knocking through to the store room without consent and therefore in breach of his obligations.
ii) They say that they have attempted to conduct remedial works but have been prevented from doing so by Mr Hanson and that that therefore means they are not liable.
On notice, Mr Hanson could be shown to have complained to the claimants about cold in the unit and the state of repair in December 2019.
The Circuit Judge held:
On the evidence the property was already in an unfit condition when it was first let to Mr Hanson and had deteriorated subsequently. There was never adequate insulation or storage heating, the electrical installation was insufficient for the whole HMO and remained so. There was initially hot water via an electric system but this had ceased working by December 2019. By December 2019, the toilet and the sink were loose and required repair. The other repair issues were known to the claimants from their surveyor’s report in December 2019.
The rat infestation was via drains controlled by the claimants.
From December 2019, the claimants’ repairing obligations were engaged on the following
a) Reinstate electricity to all parts of the Unit;
b) Fix the supply of hot water to the Unit;
c) Carry out works to prevent the damp penetration into the building from the external walls;
d) Fix the sink and toilet to the wall so they could be used properly and safely;
e) Fix the broken window;
f) Fix the private drains serving the Unit and carry out any repairs to the structure of the Unit so as to take reasonable steps to eliminate the rat infestation.
From 20 March 2020, the claimant’s became liable to remedy all the other issues identified in the SJE’s report as making the unit unfit for human habitation.
None of this had been done.
On the claimants’ defence to the counterclaim:
i) there was no evidence that Mr Hanson use of the property had caused a deterioration in its condition or fitness.
ii) Where there was no formal written consent for Mr Hanson to knock down the wall to the storage area and occupy it, on the evidence of text messages, the claimants’ knew of his intention and had agreed. The absence of formal consent was deliberate by the landlord in case LB Camden objected to the move. In any event, the landlord continued to accept rent after clearly knowing of the alteration. THis all took effect as a surrender and regrant of tenancy for the extended area.
iii) On the alleged refusal of access to do works, this could in theory be a defence – Granada Theatres Ltd v Freehold Investment (Leytonstone) Ltd [1959] Ch 592. However, Granada Theatres also held that the landlord “should give the tenant sufficient notice of intention to enter and information about the work intended to be carried out.”
Although Mr Hanson had refused access on occasion:
The Claimants did not make in my view a serious attempt was made to gain access or plan the works that were needed after Mr Hollowood had attended. They have no proposed schedule of works for example. Mr Hanson was not informed of the nature of any works which were intended to be carried out nor was he able to assess whether such works were likely to fulfil their purpose. Thus in my view the Claimants have not shown that they were ready and able to carry out the necessary works. I think it more likely than not that the Claimants had concluded too easily that Mr Hanson was being awkward in his dealings with neighbours and visiting workmen.
There was sparse evidence of attempts to arrange access from January 2020 onwards, despite Camden’s hazard notice. The claimants relying upon what were said to be refusals to Camden’s EHO and social worker, which had nothing to do with the landlord attempting works.
So it had not been proved that Mr Hanson’s refusals of access were consistent and such as to prevent them from remedying the defects to the unit.
for the Claimants to excuse their failure to remedy the defects in the Unit, one would have expected to see a series of requests and refusals to give access over a substantial period of time. I would have expected more than the occasional text or email seeking to obtain access and I have not seen any proper or formal assertion by the Claimants of a right to access and the consequences of any continued refusal or a description of what works were intended to be carried out.
The defence and counterclaim succeeded on liability.
On quantum of damages, the Circuit Judge was taken to the District Judge decisions in Dezitter v Hammersmith (our note) and Fulham Homes and Mason v Olivera (our note) on the issue of damages for unfitness for human habitation, but rejected the proposition that unfitness was a binary decision:
Firstly, this appears to me to be confusing a claim for damages for a breach of contract with a claim for restitution for a total failure of consideration. No such claim is pleaded here.
ii) Secondly, I see no reason to depart here from the usual test of compensatory damages for breach of duty i.e. that the Court should seek to order compensation to the tenant so as, so far as money can, to restore the tenant to the position he or she would have been had there been no breach. That requires a determination to be made on a case by case basis – and a simple binary rule in my view is inappropriate and would be unjustified in a case determining compensatory damages. A property might fail to reach the requirement of fitness for habitation for many different reasons and that may affect the amount of any compensation which was due. One can, for example, imagine a case where there is a tenancy of a large house with extensive grounds where a defect in condition in say one significant part of the property might lead the Court to conclude that the property was not fit for human habitation but that the tenant still got some benefit from continuing the tenancy. To allow tenants to stay there rent free until the defects had been remedied might well be in danger of overcompensating the tenants. It seems to me therefore that a “one size fits all” approach is not justified.
iii) Thirdly, while Mr Bano argued that I should follow Dezitter and Mason to ensure consistency in approach at County Court level, it seems to me that the approach would be contrary to the usual approach taken to compensatory damages in the law. In my view, consistency between all courts determining compensatory damages is more important than me declining to follow a previous decision or two at district judge level in this specific area. Furthermore, it is only Dezitter that expressly adopted the binary approach. It is not clear to me from the case report whether the District Judge in Mason adopted the same approach as had been done in Dezitter or whether the Court carried out a more traditional approach in reaching the decision on the level of damages.
In my view, therefore, a claim for damages for the breach of the implied covenant contained in the new section 9A of the 1985 Act should be approached in the same way as a claim for the breach of the implied covenants in section 11 and it would be wrong to depart from the usual rule as to how to calculate compensatory damages.
Having said that, there was force in the submission that there was no or limited benefit to the tenant of a small one or two roomed dwelling that was not fit for human habitation.
I consider the notional reduction of rent approach to be the most satisfactory approach to measuring general damages in this case.
Here, the small size of the Unit and the failings set out in Mr Hollowood’s letter, the Hazard Notice and Mr Flowers’ report are very significant. The flat in particular did not have effective space heating, was not properly insulated, did not have hot water, was not properly ventilated, did not have properly fixed toilet or sink and was subject to a rat infestation. That level of a failure to meet the requirement of human habitation is very considerable indeed.
Damages for disrepair from December 2019 to March 2020 (not including the lack of insulation or poor ventilation, as not disrepair), assessed at 60% of rent for the period.
Damages after 20 March 2020 – a 4 year period:
the failure to provide basic conditions fit for such occupation in a small flat was such as that 100 percent reduction in the rent would be appropriate to reflect the inconvenience and distress caused to Mr Hanson.
This totalled £51,948, to which the Simmons v Castle 10% uplift was applied, giving £57,142.80.
On special damages, there were invoices for emergency electricians, and the claim for additional heating costs, though not evidenced, would be partially allowed on the evidence of the cold conditions in the flat. Specal damages of £1,425.
Further counterclaims for harassment and breach of quiet enjoyment were dismissed, as was a claim for disability discrimination, not least as there was no medical evidence brought forward as to Mr Hanson’s asserted disability or eveidence of harassment based upon that disability.
On the possession claim, given the success of the counterclaim, ground 8 and 10 failed.
On ground 11
there were arrears at the outset and until Housing Benefit was paid direct to the Claimants in September 2021, but given that those arrears were subsequently paid and at a time when I consider there was a very poor condition of the property without any proper or concerted effort on the part of the Claimants to comply in particular with their implied duty for fitness for human habitation, I do not consider that it would be reasonable to order possession under Ground 11.
An order for the works in the single joint expert’s report was made, with works to be done ‘as soon as reasonably possible’ (NL note – this is an enforcement nightmare.)