HLPA MEETING 19.5.2004
DISREPAIR: A ROUNDUP OF RECENT CASES
LIABILITY
Who is liable/Change of Landlord
Smith v Muscat [2003] EWCA Civ 962, [2004] HLR 65 LAG Nov 03 p10
T withheld rent because of disrepair. The property was sold to a new LL who
claimed possession and the T counterclaimed for disrepair. At first instance the
judge only awarded the T damages for the period after the new LL become the
owner and set off the damages against the arrears. As this was insufficient to
clear the arrears and there was no prospect of the T clearing the remainder
possession was ordered.
The CA allowed T’s appeal and without deciding whether it was correct that a T
could not bring a claim for damages against a new owner for an earlier landlord’s
breach of obligations, as decided in Duncliffe v Caerfelin Properties [1989] 27 EG
89, held that this did not prevent a T from raising an equitable set off when a new
LL sought to recover arrears of rent assigned to him at the point of purchase.
The assigned arrears were taken with the burden of any and all of the equities
affecting them including a tenant's equitable right to extinguish the rent by set off.
Maunder Taylor v Blaquiere [2003] HLR 621 LAG Nov 03 10
A long leaseholder claimed that his landlord was in breach of its repairing
obligations. As the landlord was in receivership a manager was appointed under
s24 LTA 1987. The manager instituted a programme of remedial works and sent
the tenant a service charge bill for his proportion of the costs of the remedial
works. The tenant sought to set off against that demand the value of his
unliquidated claim for breach of repairing obligation by his landlord from the date
of the mangers appointment.
CA held that no equitable set off was available where the service charge demand
was made by a statutory manager as it would frustrate the statutory scheme
Express terms
Goldmile Properties v Lechouritis [2003] EWCA Civ 49, LAG Nov 03 p10
[2003] EGLR 60
A tenant brought a claim for breach of the covenant of quiet enjoyment where a
landlord erected scaffolding and sheeting outside building for 6 months while
repairs carried out.
CA held that a lease containing a landlord’s repairing obligation and a convent for
quiet enjoyment for a tenant had to be construed to give effect to both provisions.
The landlord had to take all reasonable precautions to prevent disturbance being
caused by repairs but not required to take every possible precaution. On the facts
there was no breach
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
CA held that a contract to provide accommodation is a consumer contract like any
other and rejected the LA 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 which outlines the ways in which a standard tenancy
agreement may contain unfair provisions about repairs e.g., terms which exclude
liability for injury or death, terms which seek to exclude liability for repairs and
terms which try to transfer liability from LL to T
Implied terms
Niazi Services Ltd v Johannes Marinus Henricus Van der Loo [2004] EWCA
Civ 53
The CA overturned the decision that a tenant of a 2 nd floor flat was liable to his
subtenant for an inadequate supply of water to his flat caused by works done to
the restaurant on the ground floor of the premises under section 11 Landlord
Tenant Act 1985. The problem was not in the flat itself and the tenant had no
interest in that part of the building of which the defective installation formed part.
Ball & Ball v Plymouth CC [2004] EWHC 124 QB
The tenants’ appeal against the dismissal of their claim for damages under
section 11 and section 4 for dampness to their home was dismissed. The
tenants had failed to discharge the burden of proof that the dampness was due to
an actionable defect in the structure and exterior of the building as opposed to
condensation. [There was conflicting expert evidence but no cross examination
as neither gave oral evidence] The judge’s discussion of the tenant’s solicitor’s
arrangements was irrelevant to liability but did not render his decision unjust.
Liability for acts of Third Parties
Vye v English Churches Housing Group LAG Nov 03 11
LL liable for assault and robbery on communal stairs as unlikely T would have
been assaulted in the street if LL had repaired communal front door
Tortious liability
Dunn and another v Bradford MDC [2002] EWCA Civ 1137, [2003] HLR 154
[2003] EGLR 104 LAG Nov 03 11
The tenants claim that an express term of their tenancy that the tenants had to
permit the landlord to enter the premises for the purpose of executing repairs or
improvements was elevated by section 4(4) DPA to a duty to carry out repairs or
improvement necessary to maintain the property and eradicate condensation was
rejected.
CA held that the section 4(4) could not be used to compel a landlord to remedy
design defects nor did it impose a duty on a landlord to carry out works of
improvement going beyond such repair or maintenance as necessary to maintain
the house in the condition it had been at the time it was first let,
Alderson v Beetham Organisation Ltd [2003] EWCA Civ 408 [2003] HLR 914
LAG Nov 03 p11
CA held that s1(5) of DPA enabled an action to be brought in respect of a failure to
produce a fit dwelling within 6 years of the completion of further works which had
themselves failed to make the dwelling fit for human habitation even though a
claim arising out of the original conversion works was statute barred
Marcic v Thames Water Utilites Ltd [2003] UKHL 66 2003 LAG Feb 04 32
An owner occupier sought damages for the recurrent flooding of his property by
overflowing sewage in common law nuisance and on the basis that the water
authority’s failure to act was a breach of his Convention rights under article 8 and
article 1 Protocol 1.
The House of Lords rejected all the claims on the basis that liability in nuisance
would be inconsistent with the statutory scheme for regulation of water and
sewage undertakers which also provided a fair balancing mechanism for the
assessment of priority and enforcement so that there was no breach of the
Convention
Abdahall Ltd v Smee [2003] HLR 577 [2003] EGLR 66
C owned the freehold of a mews house but D acquired the freehold to the top
floor flat and roof by adverse possession. The roof having fallen into disrepair C
obtained an injunction requiring D to allow workmen access to make the roof
watertight and then sought to recover the cots of the works from D.
CA held that D, as an occupier of land owed a duty of care to her neighbour to do
that which is reasonable in the circumstances. D’s duty was not prevent water
ingress to C’s property but to make an appropriate contribution to the cost of the
works, which in this case was to share the cost equally.
Repair /Improvement
Gibson investments ltd v Chesterton PLC [2003] EWHC 1255 Ch
The relocation of pipework into the ceiling during the replacement of a defective
air conditions system to free up more floor space went beyond mere repair and
constituted an improvement as the works would create something recognisably
different from what would result from merely remedying disrepair and have a
significant effect upon the letting value
Making good after repairs
Vukelic v Hammersmith & Fulham LBC [2003] EWHC 188 LAG Nov 03 13
Useful guidance on the degree of making good required after repairs
Disrepair caused by T
Seine International SA v Park Lane Holdings Inc [2002] All ER (d) 459 LAG
Nov 03 12A
A tenant installed air conditioning for his health and drilled 5 holes through the
external walls of the building and in breach of the express terms of the lease not
to “cut or maim” the walls without permission. In an action by the landlord for a
mandatory injunction requiring the removal of the pipework running through the
holes and making good of the damages the court held that the holes were only a
small injury to the landlord, which could be compensated in monetary terms
namely £250 in lieu of an injunction, which would be an oppressive remedy
Burkeman v GE Capital Europe Lt [2002] EWHC 2863 LAG Nov 03 p12.
Useful guidance as to how a claim by a landlord as to the condition in which the
property had been left at the end of the tenancy and the costs of remedial works
would be resolved at trial. Here damages of £43,453 were ordered against the
tenant albeit in respect of a property at an annual rent of more than £100 000
Bluestorm Ltd v Portvale Holdings Ltd [2004] EWCA Civ 289
The appellants remained liable for service charges since they could not be set
off against any loss that may have been suffered through the Respondents
failure to repair because it was the appellant’s failure to pay the charges that
caused the inability to meet the repairing obligations.
Query whether a similar reasoning would be applied in a residential context.
Will counterclaims for disrepair again private landlords to whom rent had not
been paid be dismissed?
DAMAGES
Repairs round-up LEGAL ACTION (bi-annual) [Nov and Dec 2003]
Table at 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
In a disrepair claim, 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 and the judge had given
no explanation as to how he had arrived at it. It reduced the award to £8000
having discounted the award for the tenant’s failure to mitigate his loss.
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.
Unreasonable refusals to accept alternative accommodation can affect the level
of damages for disrepair - Lubren v Lambeth LBC 20 HLR 165 explained
Azam v Ahmed LAG Nov 03 13
Separate damages awards were made for 7 members of a family occupying a
house in disrepair as each member of the household had occupied the property
for different periods and had suffered different inconvenience. The awards
ranged from £5938 to £10500 for each tenant producing a total award of
£62,485
FCH Housing & Care v Smith LAG Nov 03 13
HHJ Nichols allowed an appeal against an award of £1000 for 3.5 years of
problems with the heating and hot water; defective plaster in the living room and
some faulty windows. The award was too low; the tenant had been unable to
invite guests to her home and on occasion had to stay elsewhere in the absence
of heating and hot water. He substituted £2000 for the first year, £1500 for the
2nd year when there were 5 weeks with no heating and T was confined to her
bedroom and £1500 for the remaining 18 months when, although the heating did
not break down as much, there were still recurrent problems.
[Similar awards of £1750 to £2000 per annum for intermittent heating and hot
water supply over a 2.5 year period in Sarmad v Okello Shoreditch CC
24.10.03 to be reported in 2004 repairs update]
New Haverford Partnership v Stroot [2001] 772 Atl Rep (2nd) 792 Del LAG
Nov 03 p 13
Mrs Stroot spend 21 months in an apartment block affected by water penetration
and mould growth during which time she spent 9 days as a hospital inpatient
and was treated for 7 asthma attacks.
The Supreme Court of America dismissed the landlord’s appeal against the
jury’s award of $1 000 000 for personal injuries less a reduction of 22% for
contributory negligence on the basis that the damages were not unreasonable
given her preexisting asthma had been significantly exacerbated by the
conditions and although her asthma symptoms decreased after she left the flat
they did not return to her pre exposure baseline
Disrepair and the CPR
McNair v Oldham MBC LAG Nov 03 p11
An appeal against an allocation of a disrepair claim to the small claims track was
allowed where although the mother claim was valued at less than £1000 the DJ
had failed to consider the value of the daughters personal injury claim which
was arguably greater than the £1000 threshold in CPR 26.6(1) (a) (ii) so that the
daughter’s claim should be assigned to the fast track. As both claims arose out
of the same facts, it would not be right to direct separate trials of the mother
claim on the small claims track and the daughters claim on the fast track. The
proper order was for the whole case to proceed on the fast track.
Wilton v Rhonndda Cynon Taff CBC unreported
An appeal against the District Judges case management decision to stay 53
cases issued prior to the introduction of the pre action protocol until service of a
Scott schedules and special damages schedule by the Claimants was dismissed
by the Circuit judge. The stays imposed were an appropriate method of carrying
out case management in these cases where £2500 of costs had allegedly been
incurred by the date of the initial letter of claim
CFAs/Costs
Bowen v Bridgend CBC Supreme Court Costs Office 23.3.04
11 cases where the Conditional Fee Agreements in housing disrepair cases
were found to be unenforceable for breach of the regulations including the basis
that the Claimants should have been advised to rely upon legal aid
PRE ACTION PROTOCOL FOR HOUSING DISREPAIR CASEES
Into force on 8.12.2003 but not retrospective PD Protocols para 5.2-5.4
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T to notify LL as early as possible that claim for disrepair being considered –
should propose instruction of expert, request disclosure
Full letter of claim asap after early notification letter and detail defects,
history and effect upon T
LL to reply in detail within 20 days, sending relevant requested documents
and responding re expert evidence
Where possible expert should be single joint expert (with the cost shared)
and should inspect within 20 days of letter of response
Where claim is settled without litigation, the LL should pay T's expenses
Article by Tracey Bloom in Legal Action December 2003
EPAs
R (Islington LBC) v Inner London Crown Court December 03 LAG p11
The Council was prosecuted for allowing dampness and other conditions to
render the T’s home prejudicial to health. The Council failed to respond to
correspondence, the service of the expert’s report or the s 21 notice. 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.
On the Council’s application for JR the Divisional court with some hesitation
agreed that the fine was excessive given that the Council had pleaded guilty on
the first occasion, and the home had not been reduced to unfitness. The matter
was remitted for reconsideration of the fine but with a warning that fines in the
order of £500 previously reported were so low as to be ‘wholly inappropriate of
cases of this kind’.
Beatrice Prevatt
Housing Team
2 Garden Court Chambers
18th May 2004