PART 1 What Rights to Tenants Have?

An introduction to disrepair

Justin Bates

PART 1 – What Rights to Tenants Have?

Rights of tenants: common law

1.At common law, there is no implied term that premises will either be fit for human habitation at the commencement of a term, or rendered so fit (see Hart v Windsor (1844) 12 M. & W. 68, Cruse v Mount [1933] Ch. 278; Sleafer v Lambeth LBC [1960] 1 Q.B. 43), save (a) in the case of a furnished letting (Wilson v Finch Hatton (1877) 2 Ex.D. 336), and (b) in the case of a lease or agreement for a lease entered into while a house or other premises is still under construction, in which case it is implied that the house will be fit at the commencement of the lease (Perry v Sharon Development Co [1937] All E.R. 390).

2.In either of these cases, the term does not extend to an undertaking to keep the premises fit for human habitation throughout the letting but is confined to their state at the outset: Hart v Windsor (1844) 12 M. & W. 68, Sarsons v Roberts (1895) 2 Q.B. 395.

3.There is no basis in common law for implying a term to keep premises in “good condition” as to do so would make for the parties a bargain which they had not themselves made: Lee v Leeds CC; Ratcliffe v Sandwell MBC [2002] EWCA Civ 6; [2002] H.L.R. 17.

4.Neither does the tort of nuisance nor the covenant of quiet enjoyment will not afford a remedy by other means: Southwark LBC v Mills; Baxter v Camden LBC (No.2) (1999) 32 H.L.R. 148. Southwark LBC v Mills concerned a flat in a purpose built block constructed in 1919 with inadequate sound insulation. In Baxter v Camden LBC, the premises were a flat in a Victorian house that had been converted in 1975 in compliance with the then prevailing building regulations (likewise with inadequate sound insulation). As a result, the ordinary domestic use of the flats disturbed neighbouring tenants. The House of Lords held that Camden were not liable in nuisance because the ordinary use of residential premises for the purpose for which they were constructed is incapable of amounting to nuisance.

Rights of tenants: Landlord and Tenant Act 1985

5.The principal rights of tenants are those found in Landlord and Tenant Act 1985 s.11. The burden imposed on landlords by this section is:

(a) to keep in repair the structure and exterior of the dwelling-house (including drains, gutters and external pipes) (s.11(1)(a));

(b) to keep in repair and proper working order and installations for sanitation, water, electricity and gas (s.11(1)(b)); and,

(c) to keep in repair and proper working order the installations for space heating and heating water (s.11(1)(c)).

6.In relation to leases granted after 15 January 1989, the burden imposed on landlords is to keep in repair the whole building in which the premises are situated and the installations serving the premises (even where located outside the dwelling). So far as he has an estate or interest in them (s.11(1A)), this includes an easement, so that where the long leaseholder of a flat in a block had an easement of access and had sub-let, the sub-tenant could claim against him in respect of disrepair to the property the subject of that easement: Edwards v Kumarasamy [2014] EWCA Civ 20.

7.The term applies to all tenancies and leases for a term of less than seven years (see s.13), which includes a periodic tenancy no matter how long it may have lasted. It applies whether what is let is a building or part only of a building (see s.16). The covenant does not extend so far as to make the landlord liable for works for which the tenant is responsible under the implied covenant to use the premises in a tenant-like manner (s.11(2)(a)). Nor does it oblige the landlord to rebuild or reinstate the premises in the event of destruction or damage by fire or by “tempest, flood or other inevitable accident” (s.11(2)(b)). Nor does the covenant require the landlord to repair or maintain anything which the tenant is entitled to remove from the premises (s.11(2)(c)).

8.It has been held that there is no obligation on a landlord to inform a tenant how properly to use the facilities in a property let to him: Southwark v McIntosh [2002] 1 E.G.L.R. 25 QB, where the authority were not liable for damage caused by water penetration which had occurred because of condensation formed when the tenant used an upstairs cupboard to dry clothes.

Keep in Repair

9.The obligation to “keep” installations in repair and proper working order is to be construed as a covenant to “put and keep”: Saner v Bilton (1877-78) L.R.7 Ch.D 815. See also Anstruther-Gough-Calthorpe v McOscar [1924] 1 K.B. 716 CA.

Structure and exterior

10.Whether something amounts to part of the structure or exterior is a question of fact; the words “structure” and “exterior” are to be given their normal and ordinary meaning; the question is not determined by what has been demised: Campden Hill Towers Ltd v Gardner [1977] Q.B. 823; [1977] 2 W.L.R. 159; (1984) 13 H.L.R. 64

11.The structure and exterior of premises does not include the back yard of a house or means of access to it: Hopwood v Cannock Chase DC [1975] 1 W.L.R. 373; (1984) 13 H.L.R 31 CA; King v South Northamptonshire DC (1991) 24 H.L.R. 284 CA and McAuley v Bristol City Council [1992] Q.B. 134 CA, but the essential means of access to a house is included as “exterior”: Brown v Liverpool Corp [1969] 3 All E.R. 1345; 13 H.L.R. 1 CA.

12.“Exterior” includes the partition wall between two adjoining houses: Green v Bales (1841) 2 Q.B. 225; Pembery v Lamdin [1940] 2 All E.R. 434 CA. It does not include nearby premises or installations which are not demised: Peters v Prince of Wales Theatre (Birmingham) [1943] K.B. 73 CA.

13.Internal plasterwork is generally to be regarded as part of the structure of a building: Grand v Gill [2011] EWCA Civ 554; [2011] 1 W.L.R. 2253; [2011] H.L.R. 37.

14.Structure and exterior will also generally include windows: see Ball v Plummer [1879] 2 T.L.R. 877 CA; Boswell v Crucible Steel Co [1925] 1 K.B. 119 CA. In Irvine v Moran (1992) 24 H.L.R. 1 QB, the court held that windows, window frames, sashes, cords and essential furniture of windows formed part of the structure and, if not structure, that the windows are, at least on their outer face, plainly part of the exterior.

Installations and Pipes

15.A landlord is not obliged to lag internal water pipes under s.11: Wycombe Area Health Authority v Barnett (1982) 5 H.L.R. 840 CA.

16.A pipe which is choked has been held to be out of repair: Bishop v Consolidation London Properties (1933) 102 L.J.K.B. 257.

17.As regards “proper working order,” it is clear that a design defect can be caught by the covenant: see Liverpool City Council v Irwin [1977] A.C. 239; (1984) 13 H.L.R. 38, where the water cistern was defective.

18.The efficiency of an installation is not relevant to whether it is in “proper working order”; accordingly, there was no liability under this section for pipes which—due to a design defect—were incapable of supplying water to a flat when the water pressure fell: O’Connor v Old Etonians Housing Association [2002] EWCA Civ 150; [2002] H.L.R. 37; Liverpool CC v Irwin [1977] A.C. 239; (1984) 13 H.L.R. 38.

Rights of tenants: contractual terms

19.While many tenancies, particularly in the public sector, reflect expressly the terms implied by s.11, some express terms may require a higher standard: in Welsh v Greenwich LBC (2001) 33 H.L.R. 40, CA, a covenant by the landlord to maintain the property in “good condition” was held to include liability for severe condensation dampness (see further below).

20.Many express terms—again, particularly in public sector tenancies—are discharged not by the landlord but by an independent body to which the landlord delegates or contracts out the discharge of that term (e.g. cleaning common parts). Although this is an acceptable discharge of an obligation under an express term, the landlord must maintain an adequate system for monitoring the performance and effectiveness of the contractor to whom the obligation has been delegated: Long v Southwark LBC [2002] EWCA Civ 403, [2002] H.L.R. 56.

PART 2 – Proving a Breach of Covenant

Out of repair

21.Before a party can be liable under a repairing covenant, the subject matter of the covenant must have deteriorated so that it is in a condition which calls for repair: Quick v Taff Ely BC [1986] Q.B. 809 CA at 821, per Lawton LJ (where badly-designed window frames caused condensation but no disrepair).

22.The principle established in Quick was approved by the House of Lords in Southwark v Mills; Baxter v Camden LBC: "Keeping in repair means remedying disrepair. The landlord is obliged only to restore the house to its previous good condition. He does not have to make it a better house than it originally was: see Quick v Taff Ely BC [1986] Q.B. 809."(Per Hoffman LJ at p.8.)

23.An element in a building may not perform its function yet nevertheless not be out of repair: Stent v Monmouth DC (1987) 19 H.L.R. 269 CA, where a defectively designed door which let in water did not per se constitute disrepair, but as a result had become rotten and distorted and for that reason was out of repair.

24.In Southwark v Mcintosh [2002] 1 E.G.L.R. 25 Ch. D., a landlord was not liable under the repairing covenant implied by Landlord and Tenant Act s.11, merely because there was serious damp in the demised premises.See also Ball v Plymouth City Council [2004] EWHC 134, QBD, where the tenant failed to establish that the relevant damp resulted from penetration through defective external walls.

Notice

25.Whether or not notice is required depends on the nature of the covenant in question. At common law, a landlord is liable for a breach of a repairing covenant immediately that the disrepair arises. There is an exception where the defect occurs in the demised premises, in which case, there must be such notice as would put a reasonable landlord on inquiry: Edwards v Kumarasamy [2015] EWCA Civ 20; British Telecommunications Plc v Sun Life Assurance Company Plc [1996] Ch. 69; [1995] 3 W.L.R. 622. It follows that notice need not be given in relation to any part of the premises which are still in the control of the landlord: British Telecommunications Plc v Sun Life Assurance Company Plc (above); see further, Passley v Wandsworth LBC (1998) 30 H.L.R. 165; Minchburn v Peck (1988) 20 H.L.R. 392; O'Brien v Robinson [1973] A.C. 912 HL; [1973] 2 W.L.R. 393; (1984) 13 H.L.R. 7; McGreal v Wake (1984) 13 H.L.R. 107 CA.

26.Where the lease contains an express repairing covenant which does not state that the tenant is required to give notice, there is no need to give notice before liability can arise: British Telecommunications Plc v Sun Life Assurance Company Plc [1996] Ch. 69; [1995] 3 W.L.R. 622, Minchburn v Peck (1988) 20 H.L.R. 392. This is also true of the implied covenant in s.11(1A), Landlord and Tenant Act 1985: Edwards v Kumarasamy [2014] EWCA Civ 20.

27.It is not necessary, however, for the landlord to have notice of the extent of the disrepair; merely that he has sufficient information as would require a reasonable man to investigate what repairs were needed: British Telecommunications Plc v Sun Life Assurance Company Plc [1996] Ch. 69; [1995] 3 W.L.R. 622.

28.Notice need not come from the tenant: Dinefwr Borough Council v Jones (1987) 19 H.L.R. 445. A notice served on the landlord by the local authority under, e.g. Housing Act 2004 may be sufficient, see McGreal v Wake, above (notice under Housing Act 1957). See further Hall v Howard (1988) P.&.C.R. 226; Sykes v Harry [2001] Q.B. 1014. It must, however, be unequivocal notice. In Al-Hassani v Merrigan (1988) 20 H.L.R. 238, the tenant had complained of disrepair, but had said that he would provide further details: the landlord was entitled to await that further information.

Failure to remedy within reasonable period

29.Once the landlord has notice of the need for repairs, he has a reasonable time in which to carry out the work: Green v Eales (1841) 2 Q.B. 255; O’Brien v Robinson (above); Caldabar Properties Ltd v Stitcher [1984] 1 W.L.R. 287.

30.What is a reasonable time depends on all the circumstances: McGreal v Wake (above). If the defect is dangerous or liable to cause further damage, the landlord may be required to carry out temporary repairs before more permanent works can be effected: Griffin v Pillet [1926] 1 K.B. 17. The onus is on the tenant to show that delay has occurred: a delay of one week in repairing a door which had been destroyed by firemen forcing entry was not unreasonable: Morris v Liverpool City Council (1987) 20 H.L.R. 498, CA.

31.It has been suggested (obiter) that, if the cost of the work is to be recovered via a service charge, then a reasonable time must include that taken to comply with the statutory consultation provisions under Landlord and Tenant Act 1985 ss.20, 20ZA: Earle v Charalambous [2006] EWCA Civ 1090; [2007] H.L.R. 8.

32.There is, however, no “reasonable time” issue if the disrepair arises in circumstances where the landlord is not required to be given notice, in which case the remedial work must be done immediately: British Telecommunications Plc v Sun Life Assurance Company Plc (above).

PART 3 – Remedying disrepair

33.The primary remedies available to a tenant—whether under the express or implied covenants—are damages and an injunction to compel remedial works.

Damages

34.When seeking to draw parallels between cases, damages must be adjusted for inflation. Further, for damages awards after April 1, 2013, the uplift in Simmons v Castle [2012] EWCA Civ 1288; [2013] 1 W.L.R. 1239 must be considered.

General damages

35.The approach to general damages for breach of a landlord’s covenant to repair was reviewed by the Court of Appeal in Calabar Properties Ltd v Stitcher [1984] 1 W.L.R. 287; 11 H.L.R. 20, CA and Wallace v Manchester City Council (1998) 30 H.L.R. 1111, CA. Both cases approved Hewitt v Rowlands (1924) 93 L.J.K.B. 1080, that the correct calculation is the diminution in value of the premises for the purpose of putting the tenant in the position that he would have been in had the breach not occurred.

36.Where the tenant has remained in occupation during the period of disrepair, the loss to him which requires compensation is the loss of comfort and convenience, resulting from living in a property which was not in the state of repair it ought to have been in had the landlord complied with his obligation: McCoy & Co v Clark (1982) 13 H.L.R. 87, CA, Calabar Properties Ltd v Stitcher [1984] 1 W.L.R. 287, 11 H.L.R. 20, CA, Personal Representatives of Chiodi v De Marney (1988) 21 H.L.R. 6, CA, Wallace v Manchester City Council (1998) 30 H.L.R. 1111, CA.

37.The level of compensation may be assessed in different ways: a notional deduction in rent; a “global” award for discomfort; or a mixture of the two

38.In McCoy & Co v Clark (1982) 13 H.L.R. 87 (CA), the court was principally concerned with reduction in value. A flat was damp, on account of water penetration, and the tenant had been complaining since 1977. Repairs were not carried out until 1981. The property was in a worse state for the last two years of this period. The county court judge took the view that the tenant did not spend a great deal of time at home, and that the house was not of great importance to him, being used mainly as a place to sleep. The Court of Appeal did not accept this as a basis for calculating reduction in value: the tenant was entitled to the reduction in value calculated in proportion to that for which he was paying, i.e. as distinct from how he was using the flat. The award of 10 per cent of the rent for the first two years, and 20 per cent for the second two years, was considered “much too low”, and was doubled in the Court of Appeal.

39.The Court of Appeal also doubled an award of £100 (reduced by 50 per cent for contributory causation by tenant) to £200 (also reduced by 50 per cent), for pneumonia, resulting in part from the conditions in the flat and leading to pain, about nine days in hospital, and five to six weeks feeling ill. The judge had been wrong to take into account that the tenant had a comfortable time in hospital.

40.In Niazi Services Ltd v Johannes Marinus Henricus Van der Loo [2004] EWCA Civ 53; [2004] H.L.R. 34, the Court of Appeal, following Wallace, above, calculated damages on the basis of notional reduction in rent. Because of the high rent for the property, this resulted in damages of £9,050 for some minor water leaks, a faulty shower thermostat, and a failure to repaint parts of the flat.

41.In Shine v English Churches Housing Group [2004] EWCA Civ. 434; [2004] H.L.R. 42, the Court of Appeal reduced an award of damages of £19,000 to £8,000. Although the disrepair had lasted some seven years, the rent for the property was £50 per week. Although the guidelines for the award of damages in Wallace (above) were not absolute, a judge must provide clear reasons for departing from them and must justify doing so by reference to the facts of the case. Damages for breach of covenants are to compensate the tenant for a breach of contract and should therefore be assessed by reference to whether the tenant is obtaining proper value for the rent he is paying.

Special damages

42.In addition, tenants are entitled to special damages, such as damage to personal property, cost of redecoration, the expense incurred in obtaining alternative accommodation, etc. (which must be specifically pleaded).Whether such losses are recoverable is a question of whether they are “reasonably foreseeable”. Thus, where a tenant claimed damages for falling on a staircase that she was only using because the lift did not work, it was held that the injury was not a reasonably foreseeable consequence of the failure of the lift to work: Berryman v Hounslow LBC (1996) 30 H.L.R. 567, CA.

43.Where there has been physical damage caused by, e.g. an escape of water, damages will generally cover the cost of reinstatement. Where any additional sums are claimed, the onus is on the claimant to show that further damages are reasonable: Skandia Properties (UK) Ltd v Thames Water Utilities Ltd [2000] J.H.L. D21, CA, where the claimant failed to recover damages for the cost of replacing a waterproofing system allegedly necessitated by a flood from Thames Water pipes. As the decision to replace had been based on the false assumption that the system had been damaged, replacement was not reasonable and damages could not follow.

44.A tenant is entitled to claim damages on behalf of himself and those others, e.g. family, for whose benefit the contract of tenancy was made: Jackson v Horizon Holidays [1975] 1 W.L.R. 1468, CA. The tenant can also claim for loss of enjoyment, disappointment, distress, inconvenience and unfulfilled expectations: Jarvis v Swan Tours (1973) 1 Q.B. 233, CA. The applicability of these so-called “holiday cases” to the law of landlord and tenant was noted in McCall v Abelesz [1976] Q.B. 585, CA.

Injunctions

45.In addition to damages, a tenant is entitled to an order for specific performance of the repairing covenant (Landlord and Tenant Act 1985 s.17) or an injunction requiring work to be done (County Courts Act 1984 s.38). There is no practical difference between the two remedies. A landlord who fails to comply with either an order or an injunction is liable to be held in contempt of court if committal proceedings are brought (as to which, see CPR 81).

PART 4 - Disrepair litigation

46.The pre-action protocol for housing disrepair claims applies to any civil claim arising out of the condition of residential premises, which may include a claim by a tenant, a lessee or family members (para.3). This includes (but is not limited to) claims under s.11, Landlord and Tenant Act 1985 and claims brought under the contractual terms of a tenancy or lease (para.3.2). It does not apply to any claim which originates as a counterclaim or set-off in other proceedings (para.3.3).