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Notice of disrepair - s11
Defective Premises Act
Liability of landlord
Damages for disrepair
Costs in disrepair cases

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Liability of landlord

Topics dealt with on this page include:
  • Common parts - Southwark LBC v Long
  • Compromise of earlier possession claim - not an abuse of process to bring disrepair claim - Henley v Bloom
  • Condensation and damp - Lee v Leeds; Southwark LBC v McIntosh
  • Installations - O'Connor v Old Etonian; Niazi Services v Van der Loo
  • Structure - defective plaster - s11 of 1985 Act

Common parts

Southwark LBC v Long
[2002] EWCA Civ 403

Facts

Secure tenancy of a flat in a block of council flats. The landlord (Southwark) covenanted:
  • To take reasonable steps to keep the estate and common parts tidy.

  • That facilities for collection of refuse shall be kept in proper working order.
The flat was situated next to a large bin into which a chute ran from the upper floors. The bin was often overflowing; tenants used the chute at times that were not permitted and smelly bags accumulated next to the bin. An arbitration tribunal required Southwark to take steps to prevent the problem. However, the problem persisted.

First instance

The judge at first instance found that in failing to take the steps required by the arbitration they were in breach of covenant, that there had been a nuisance in which they had acquiesced and that there was a breach of the covenant for quiet enjoyment. Southwark appealed. They sought to rely upon the fact that they had employed contractors to do the job.

Held

The appeal was dismissed. Southwark's duty to take reasonable steps to keep the common parts clean and tidy was not, in the absence of any adequate monitoring system, satisfied by employing contractors. There was also sufficient evidence of a nuisance.

Comment

However, it is worth noting that the covenant to keep in proper working order did not require Southwark to install new facilities, nor to modify them. The chute was still capable of disposing of rubbish and fulfilled the function that could reasonably have been foreseen at the beginning of the tenancy. (O'Connor v Old Etonian Housing Association Ltd [2002] see below). Nor had the covenant for quiet enjoyment been broken.


Compromise of earlier possession claim

New disrepair claim not an abuse of process

Henley v Bloom
[2010] EWCA Civ 202

Summary

It was not an abuse of process for a former tenant to commence a disrepair claim some time after compromising previous possession proceedings relying on rent arrears even though he knew at the time that he might make such a claim.

Facts

L had commenced proceedings against T on the grounds of rent arrears. Those proceedings were compromised with T agreeing to move out and a payment by L. After moving out, and after L had carried out works to the property, T commenced a claim for damages for disrepair. L defended on the grounds that they were an abuse of process. T should have brought that claim at the time of the previous possession claim. By reason of that and by reason of the compromise, T was precluded from bring a claim for disrepair. L also relied on the fact that now that works had been carried out the court could not be in a position to determine whether there actually was disrepair. The judge held that it was an abuse of process and struck out the claim.

Decision on appeal

The appeal allowed. It was not an abuse of process as there was no reason why the disrepair claim should have been brought at the same time as the possession claim. They were two separate matters, albeit arising out of the same tenancy. There was no counterclaim to the possession action seeking damages for disrepair and the compromise terms did not cover the disrepair claim. Lord Neuberger at para 31:
    ".. the consent order, the extent to which they intended their agreement to shut out any further claims: the £16,000 payment and £4,000 contribution to costs was expressly stated to be "in full and final satisfaction" of any claim Mr Henley might have in respect of improvements which he had carried out to the flat, and there is no mention of any other claim. It is therefore, in my view, difficult to see how it could be argued that the disrepair claim, which is plainly outside the ambit of that sort of claim, was "a matter in dispute" in respect of which Mrs Bloom was "misled into believing that [s]he was achieving a complete settlement". (Our emphasis)
Also at para 33:
    "… it seems to me that, where an action is brought by a claimant who was simply a defendant in an earlier action involving the same parties, it is more difficult to argue that the later action is an abuse than where the same person was claimant in both actions."
Further, there was evidence of the condition of the property prior to T vacating and any prejudice to L in not having any reports on condition could be accommodated at trial. Lord Neuberger at paras 37 and 41:
    "It may have been unattractive behaviour for Mr Henley to have kept the possibility of a disrepair claim up his sleeve for well over a year after vacating the flat, but, unless Mrs Bloom can raise an argument based on contract, estoppel or the like to defeat his claim on the basis of delay, any such argument is governed by the Limitation Act 1980."
It is not unusual for one party in litigation to be better informed or better advised than the other, for one party to have first hand evidence of important events which is not available to the other, or for one party to have stronger expert evidence than the other. Such inequalities normally cannot possibly justify a conclusion that the trial cannot be fair, even where the advantaged party can be said to be in some way to be responsible for the inequality. Of course, if the inequality is very substantial and very prejudicial, and especially if it is attributable to the actual wrongdoing of the advantaged party, the court might conclude that a fair trial cannot be achieved. But this is not such a case.

Comment

The case highlights the importance of drafting compromise agreements in litigation very carefully to ensure that they cover all matters that the parties might want them to cover.


Condensation

Lee v Leeds City Council; Ratcliffe v Sandwell MBC
[2002] EWCA Civ 06

Claim brought by tenants against their local authority in respect of condensation. There is no liability under the various statutory provisions that generally apply in respect of disrepair (see Quick v Taff Ely BC [1986] 1 QB 809). The tenants therefore argued that s6 of the Human Rights Act 1998 and Article 8 of the Convention (home) imposed an obligation on the authority to repair. The argument failed. There is no support for the proposition that there is some general unqualified human rights obligation on local authorities in relation to their housing stock.


Southwark LBC v McIntosh
[2002] 08 EG 164.
Lightman J on appeal from the county court.

An unsuccessful attempt to make the landlord responsible under s11 of the Landlord and Tenant Act 1985 for damage caused by damp. One complaint related to a cupboard that the tenant used for drying clothes. This led to condensation causing problems of damp and mould and caused excess moisture to travel elsewhere in the property, which increased condensation. The trial judge held that the landlord was responsible because he had not advised the tenant not to use the cupboard for drying clothes! On appeal this and other points were overturned. The tenant failed to show that the damp arose as a result of damage to the structure or exterior or that the damp itself caused damage to the structure or exterior.


Installations

Defects in design

O'Connor v Old Etonian Housing Association Ltd
[2002] EWCA Civ 150

The words to keep in .. proper working order in s11(1)(b) of the Landlord and Tenant Act 1985 mean that a landlord has an obligation at the commencement of the tenancy to supply an installation that is in proper working order and is so designed and constructed that it is capable of performing its function. Any incapability due to a defect in design or construction does not relieve the landlord of its obligation. (Compare an obligation to repair: Quick v Taff-Ely). The required standard is that installations have to be designed and constructed in such a manner that that they are able to function under those conditions of supply that it is reasonable to anticipate will prevail.

Interest of landlord in part in disrepair

Niazi Services Ltd v Van der Loo
[2004] EWCA Civ 53

T complained of an inadequate supply of water to his flat and sought to invoke s11 of the Landlord and Tenant Act 1985. Ts landlord was the long leaseholder of the flat occupied by T. However, the defect was caused by a problem in another part of the building, in which L had no interest, namely works to a restaurant on the ground floor.

Held: On a true construction of s11(1A)(b)(i) Ls duty only extended to those parts of the building in which he had an interest. L was not therefore liable for problems relating to the supply of water.
    "..the critical question is not whether Niazi [the landlord] had an estate or interest in the building of which the defective section of the installation forms part, but whether it had an estate or interest in that part of the building of which it formed part. It is not sufficient that Niazi had an estate or interest in any part of the building; it had to have an estate or interest in any part of the building of which the defective section of the installation formed part." (Jacob LJ, para 20).

Structure

Defective plaster

Grand v Gill
[2011] EWCA Civ 554

Summary

Defective plaster falls within the landlord’s repairing obligations implied by s11 of the Landlord and Tenant Act 1985, as the plaster is part of the "structure".

Facts

T was an assured shorthold tenant of a flat pursuant to an agreement with L. L in turn had a long lease of the flat rented to T but no interest in the remainder of the building which housed the flat. After four years of damp to the flat, L undertook some remedial work.

T brought a claim for disrepair. At trial, L was found liable for 10% of the damp as on the whole it was determined that the damp was caused by the design and construction of the flat, which was not L’s responsibility or from matters outside L’s interest in the building as whole. The 10% awarded was attributable to a faulty boiler which had contributed to the damp.

Court of Appeal

On appeal, T argued that one of the areas where the trial judge had erred was in failing to determine that L was liable for damaged plaster. The issue was whether plaster was decorative or was part of the structure so as to bring it within the landlord’s repairing obligations implied by s11 of the Landlord and Tenant Act 1985.

Rimer LJ held that it was part of the structure and accordingly L was in breach of their repairing obligations. At paragraph 25 he stated:
    "In the days when lath and plaster ceiling and internal partition walls were more common than now, the plaster was, I should have thought, an essential part of the creation and shaping of the ceiling or partition wall, which serve to give a dwellinghouse its essential appearance and shape. I would also regard plasterwork generally, including that applied to external walls, as being ordinarily in the nature of a smooth constructional finish to walls and ceilings, to which the decoration can then be applied, rather than a decorative finish in itself. I would therefore hold that it is part of the ‘structure’."
Accordingly, T was awarded a further sum to represent damages for the defective plasterwork.


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