HLPA MEETING 18.5.2005
DISREPAIR: A ROUNDUP OF RECENT CASES
LIABILITY
Contractual liability
Thornton and Jarret v Birmingham CC LAG Nov 2004 27
Ms Thornton complained of severe dampness affecting her home which she occupied with her 2 children aged 9 and 11 due to rising dampness, penetrating dampness from a fractured drain and condensation from June 1998 to October 1998. She also complained that in carrying out a modernisation plan including the installation of UPVC windows, a new kitchen and bathroom from October 1998 to March 1999 the Council took too long and interfered with her everyday life so as to constitute a breach of the covenant of quiet enjoyment. The premises were much improved from March 1999 but some defects remained. HHJ McKenna rejected a claim that it was reasonable to delay all repairs until the modernisation programme began in October 1998 and found that the works should have been undertaken by the end of July 1998. He accepted that the works were very noisy, dirty and disruptive with Ms Thornton confined to one bedroom for over 3 months but that no specific criticism could be made of the manner in which the Council carried out the works. Applying the test as to whether there had been a breach of the covenant of quiet enjoyment as set out in Goldmile Properties Ltd v Speiro Lecouritis [2003] EWCA Civ 49 Legal Action November 2003, namely whether the Defendant had taken all reasonable steps to minimise the potential risks the judge found that the Council had breached the covenant of quiet enjoyment. He was not satisfied that the Council had taken all reasonable steps as it had not rehoused Ms Thornton as it should have done particularly given the ages of her 2 children; it was irrelevant that Ms Thornton did not ask to be rehoused. He also found that the Council was unable to rely on the Ms Thornton’s failure to continue complaining after the works were done to avoid liability after March 1999.
Islington LBC v Keane Clerkenwell CC 20.1.2005
In a rent arrears action a tenant brought a Part 20 claim in relation to the fact that he had been left without a cold water supply from his kitchen tap for several years. It was agreed that the likely cause of the defect was a defective or perished washer. LBI disputed liability on the basis that the tenant was obliged to replace tap washers under the express terms of the tenancy agreement and that the defect did not fall within the implied obligation under s11(1)(b) to kept in repair and proper working order the installations in the dwelling house for the supply of water. DJ Stary rejected both these arguments holding that to replace a defective washer was not one of the little jobs about the place which a reasonable tenant must do as most people would call in a plumber to do it and accordingly given that it was covered by the implied obligation on LBI to repair they could not transfer liability for the repair onto the tenant. In so far as the tenancy sought to impose liability onto the tenant for replacing washers other then those installed for washing machines and/dishwashers, the repairing obligation was void
Peters v Lewisham LBC [2004] EWCA Civ 618 LAG Nov 04 27
Ms Peters, in a 6 page document drafted by her husband, made various claims for breach of statutory duties under the Housing Act 1996, the Disability Discrimination Act 1995, misfeasance in public office and nuisance. All the claims were struck out by the DJ whose decision was upheld on appeal by the CJ. Neuberger LJ adjourned an application for permission to appeal this decision to enable consideration to be given to it being agreed that the claim be repleaded as a disrepair claim for breach of an obligation to repair in Ms Peters licence agreement and under the DPA as photos appended to the claim indicated Ms Peters did have an arguably good claim for damages arising from the state of the premises in which Lewisham had housed her. Both the DJ and CJ had failed to consider whether it was appropriate to allow Ms Peters to proceed on a claim arising from her contractual relationship with the Council which had nothing to do with the its statutory duties.
British Glass Manufacturers Confederation v University of Sheffield [2003] EWHC 3108 (Ch), [2004] L&TR 14, LAG Nov 2004 27
The university demised premises to British Glass for 1000 years on the basis that it would erect a laboratory and other buildings and keep such buildings in repair. British Glass sought a declaration that it was entitled to demolish the laboratory and replace it with other buildings and the university sought to argue that such wholesale demolition would be a breach of the tenant’s covenant to repair. Lewison J decided that the issue turned on what the terms of the lease read in context would convey to a reasonable reader and concluded that in the context of there being no restriction on the use to which the property could be put and the term of the lease being 1000 years, the parties must have contemplated that different buildings might be erected during the term. Accordingly the terms of the lease did not prohibit the demolition and reconstruction of the buildings comprised in the lease.
Note that the Unfair Contract Terms Act 1977 does not apply to a lease, but the Unfair Terms in Consumer Contracts Regulations 1999 SI 2083 do.
R (Khatun) v Newham LBC [2004] EWCA Civ 55[2004] 3 WLR 417
CA held that a contract to provide accommodation is a consumer contract like any other and rejected the Council’s argument that the Regulations should not apply to a local authority acting for the public benefit.
The Office of Fair Trading (OFT) has produced guidance on unfair terms in tenancy agreements (OFT 356 November 2001) which outlines the ways in which a standard tenancy agreement may contain unfair provisions about repairs
Cody v Phillips LAG Jan 2005 28
LL sought to recover rent arrears from T who had left the premises. T accepted that the arrears were owed but counterclaimed for damages for disrepair. LL sought to rely upon a clause in the tenancy agreement, which was a standard agreement used by the letting agents, which prevented any set off or deduction whatsoever against the rent. T’s application to strike out the no set off clause under the Unfair Terms in Consumer Contracts Regulations was successful. DJ Wright held that the clause failed the test of fairness and was contrary to the recruitment of good faith and therefore fell foul of the Regulations.
Tortious liability
Negligence
Lips v Older [2004] EWHC 1686 LAG Nov 2004 27
The tenant claimed damages for paraplegia sustained when he fell backward over the wall leading up to the front door of the premises owned by his landlord down a 9 foot drop to a concrete basement area. Mackay J held that the landlord was in breach of the duty of care that he owed to his tenant in common law negligence to take such care as was reasonable so that people who he could contemplate using the path, namely a floating population of tenants including students and Mr. Lips, were safe to do so. It was reasonable to expect such tenants to return to the house in a state in inebriation and it was relevant to the standard of care that the landlord was a professional landlord and had access to advice. The erection of a handrail was cheap and would have returned the house to its original condition. Damages were reduced by 2/3rds for the tenant’s contributory negligence in being drunk and carrying a very heavy load which caused him to lose his balance.
Steven v Blaenau Gwent CC [2004] EWC Civ 715 LAG Nov 04 p27
The infant claimant fell from the first floor window of a house let by his mother from the Council having managed to open a window which could only be opened by a small child using a piece of furniture as a stepping stone and sustained serious injury. The Claimant’s mother had requested window locks be fitted to the window but had been told by the Council that locks could not be fitted because of the fire risk. After the accident the Council fitted a safety catch to the window which prevented it being opened for more then 2 or 3 inches by a small child. The judge found the Council liable by analogy with the decision in Stockley v KnowsleyMBC [1986] 270 EG 67, (where the Council was held liable for a flood caused when frozen pipes burst, but when warned of the possibility by the tenant, had failed to advise the tenant where or how to turn off the stopcocks),but his decision was overturned on appeal. The Court of Appeal held that the judge was wrong to derive assistance for the decision in Stockley as there was no emergency or external threat which called for council action or imposed upon it a duty to act. Given the judge’s finding that there was no general liability on the Council to provide safety locks for its tenants, the council was entitled to take a view that its policy, which had been arrived at on the basis of a balance of risks, should be applied in the absence of evidence that its application presented exceptional risk to the safety of the Stevens family. There was no evidence that this was so. There was no breach of any pre existing duty by the Council.
Defective Premises Act 1972
The Corporate Body of the Cathedral Church of the Holy and Undivided Trinity of Norwich v Gaskin [2004] EWHC 1918 (Ch) LAG Nov 03 28
The tenant under a 20 year lease of a property which imposed repairing obligations on the tenant sought to bring a claim in respect of the state of the property against her landlord. The claim in contract was struck out as disclosing no reasonable cause of action and permission to appeal a decision to strike out a subsequent claim under section 4 Defective Premises Act 1972 was also refused as section 4 is only applicable where the landlord has an obligation for the maintenance and repair of the premises. The tenant’s claim that the there was an implied right of entry to carry out repairs by virtue of the Cathedral Measures Act 1999 which would be elevated by section 4(4) DPA into a duty to repair was rejected. Given the express right of entry given to the landlord to carry out repairs where the tenant is in breach of the tenant’s repairing clause, there was no scope for implying into the lease any other or more extensive right of entry by virtue of any other provisions.
Limitation/Period of claim
Islington LBC v Keane Clerkenwell CC 20.1.2005
T brought a Part 20 for disrepair in a rent arrears claim brought by the Council. DJ Stary accepted that as the claim was a Part 20 claim the limitation period ran from the date of the original possession claim rather than the date of the Part 20 claim, giving the tenant an extra year of claim
DAMAGES
Repairs round-up LEGAL ACTION (bi-annual) [Nov and Dec 2004]
Table in Encyclopaedia of Housing Law Vol. 1 para 1-2327.3 (County Court)
Housing Law Casebook 3rd Ed [Madge] pp732-785
Guidelines for the Assessment of General Damages in PI cases
[Judicial Studies Board] 5th Edition
English Churches Housing Group v Avrom Shine [2004] EWCA Civ 434
[2004] HLR 727 LAG Nov 2004 28
Mr. Shine, acting in person, brought a claim for the disrepair which he had suffered at his basement flat which he rented from the landlord. The premises suffered from severe damp and dry rot but the claim was defended on the basis of Mr. Shine’s refusal of access. HHJ Cotran awarded £19 000 including £16 000 for the 4 years immediately prior to the hearing when the tenant had refused to move to alternative accommodation provided in breach of undertakings and injunctions against him.
The CA found that the award of £16000 was excessive; the judge had given no explanation as to how he had arrived at it and had failed to check it against the rent. It reduced the award to £8000. It awarded 75% of the rent for the period 1999 to 2001 but gave a very substantial discount for the period 2001 to 2003 for Mr. Shine’s failure to mitigate his loss. It assessed the damages payable for the period 2001 to 2003 by taking the lower figure of discounting the rent by 75% and by assessing the period of time in which the works would have been completed if Mr. Shine had cooperated which it assessed as 9 months.
When making an award of damages under the Landlord & Tenant Act 1985 the guidance given in Wallace v Manchester CC [1998] 30 HLR 111 that damages should be assessed by reference to the rent payable should be applied or clear reasons should be given for a departure from that guidance. The basic rule of thumb is that the maximum award for damages should be the rental value of the premises.
The Court also explained the decision in Lubren v Lambeth LBC 20 HLR 165 that the test of whether refusals of offers of accommodation could affect the damages awarded was whether such refusals were unreasonable.
Mzae v Abigo LAG Nov 04 29
An assured shorthold tenant of a 2 bedroomed flat suffered from disrepair throughout her tenancy which commenced in March 2001 including dampness, cracked and loose plaster work water penetration, overflowing drains, a mice infestation from 2003 and consistent problems with the boiler from April 2001. One bedroom was unusable because of the conditions. HHJ Bradbury accepted that the landlord was not acting deliberately or maliciously in failing to carry out the repairs. He was referred to and was mindful of the decisions in Manchester and Wallace and English Churches Housing and Shine and in particular the recommended approach of assessment damages by way of a putative rent reduction. He made a global assessment of damages in the sum of £14000 where the annual rent was £10 400.
[Taking a 3.5 year period of liability, this sum equates to approximately £4000 per annum or 40% of the annual rent]
Thornton v Jarrett Birmingham CCLAG Nov 04 29
The facts are set out under contractual liability above. Damages of £3000 were awarded for the period August 1998 to March 1999 Damages of £1000 per annum were awarded for the period from March 1999 to trial amounting to a total award of £7667 plus special damages of £280.
[The award for the period August 1998 to March 1999 amounts to an annual award of £4500]
Cody v Phillips LAG Jan 05 28
DJ Wrightallowed the counterclaim and awarded damages of £1500 for the 6 month period of occupation. Although the actual disrepair was not substantial reference had to be made to the fairly substantial rent for these premises.
Sarmad v Okello LAG Nov 04 29
The tenant of a 1 bedroomed flat above a restaurant made a Part 20 claim for damages for nuisance and disrepair in a possession action brought by her landlord. She complained of disrepair throughout her tenancy which lasted from February 1999 to November 2002. The supply of hearing and hot water was intermittent for the first 3 years and in 2002 the heating broke down altogether. In addition there was water penetration to the bathroom, hallway and from April 2002 to the bedroom. From 2001 there was an infestation of rats form the takeaway on the ground floor which gained access through the holes in the floors and walls.
District Judge Manners found the conditions intolerable and awarded damages, as follows:
£2000 pa Feb 99- Feb 02 for the intermittent heating and hot water supply, £1750 pa Feb 02 –Nov 02 intermittent heating and hot water supply
£1500 pa Feb 99 - Feb 01 re all other defects and
£2000 pa Feb 2001 - Nov 2002 when the rat infestation arose
making a total award of £14250.
Cleghorn v Danesh LAG Nov 04 29
The 77 year old tenant of a one bedroom basement flat suffered extensive damp causing mould growth throughout his property for the 5 years of his tenancy from 1996 to 2001 when he was unlawfully evicted. The windows and doors warped and rotted so they would not shut properly, the heating was defective and did provide much heating possibly because one of the radiators was leaking and the cistern in the bathroom leaked intermittently and even flooded on occasion. Deputy District Judge Bridge awarded general damages at the rate of £2500 per annum for the entire tenancy making a total award of £12500 and special damages of £2500 in respect of additional gas, electricity, cleaning materials and items damaged by the damp. The total damages award in respect of the disrepair was £15000.
Yates v Elaby LAG Nov 04 29
As assured tenant of a house suffered from disrepair including rotten window frames allowing water penetration, episodes of flooding, dampness a defective heating and hot water system and a wood lice infestation in the kitchen throughout her tenancy which lasted 2 years. Recorder Berkley QC finding that this was not by any means a case of the most serious disrepair and taking into account the fact that the Claimant lived in the premises with a young baby but had on 2 occasions confirmed the tenancy relationship by further agreement, awarded general damages of £2250
EPAs
R (Islington LBC) v Inner London Crown Court December 03/04 LAG 11/15
The Council was prosecuted for allowing dampness and other conditions to render the T’s home prejudicial to health. The Council pleaded guilty at the first hearing and were fined £4000 and ordered to pay compensation of £2500. On appeal the Crown Court reduced the compensation payable to £1000.