Deregulation Act 2015

The long awaited Deregulation Act received Royal Assent on Thursday 26 March 2015 and provides an immediate amendment of the law in relation to tenancy deposits. These changes are very welcome for landlords following the flurry of cases following Superstrike v Rodrigues.

The Superstrike amendments:

• If the deposit was received before 06 April 2007 and went period before 06 April 2007

The position set out in Charalambous v Ng  continues to apply.

• If the deposit was received before 06 April 2007 but was renewed or went periodic after 06 April 2007

If the deposit has not been protected, the landlord now has a period of 90 days from 26 March 2015 (or before the Court hearing to determine a tenant claim for compensation or to determine the landlord’s claim for possession under s.21, whichever is the earlier) to protect the deposit and serve the prescribed information.

• If the deposit was received after 06 April 2007

If the deposit has been protected and the prescribed information served at the outset, provided the deposit remains the same with the same scheme, the landlord will be treated as if he/she has complied. There is no need to re-protect the deposit and/or re-serve the prescribed information on renewal or roll over into a period tenancy.

If the deposit has not been protected at all, the Act doesn’t change the landlord’s liability.

Other Tenancy Amendments

The Act also provides many other amendments not only relating to landlord and tenant law. For our readership, the following are important:

• Section 30 clarifies PainSmith’s view (see our blog here) that an agent can sign and serve the prescribed information on behalf of the landlord. The section amends The Housing (Tenancy Deposits) (Prescribed Information) Order 2007 to make this explicit without the need to refer to the primary legislation. All references to “the landlord” within the Order have been amended to read “either the landlord or a person who acts on the landlord’s behalf in relation to the tenancy”.

 

• Section 35 of the Act removes the requirement from s.21(4)(a) for the date of expiry of such a notice to be the last day of a period of the tenancy.
  

 

• Section 36(2) provides that a s.21 notice cannot be given during the first 4 months of a tenant’s occupation under a tenancy agreement. This gives the tenant the same 6 month security of tenure but makes timing of the notice trickier where possession is required at the end of a 6 month term.

 

• Section 36 also provides that a s.21 notice will only have a shelf life of 6 months after which possession proceedings cannot be issued on the notice. This is contrary to the previous approach that the Courts were taking that a s.21 notice could be relied on until it was waived.

 

• Section 37 allows the Secretary of State to require landlords to use prescribed forms for s.21 notices. There is currently no prescribed form but Section 37 leaves it open that this might change.

 

• Section 40 requires a daily apportionment of rent to be paid back to the tenant in the event that the tenant has paid rent in advance but a s.21 notice is subsequently served requiring the tenant to give up possession of the property during the period that the rent payment covers.

 

The Act also contains provisions to prevent the retaliatory eviction of tenants following orders being made by the local authority relating to disrepair at rental properties. The provisions are set out in Section 33 of the Deregulation Act but they are not yet in force. Watch this space for further details on the enactment of these amendments, which is expected to be towards the end of this year.

Filed under: England & Wales, deposits, disrepair, Housing Act 1988, Housing Act 2004, legislation

Time to get your house in order

Landlords are facing the prospect of wider and more severe sanctions for failing to keep rental properties in a safe and habitable condition.

From yesterday landlords who fail to comply with an Improvement Notice or Prohibition Order to ensure properties are safe and habitable face unlimited maximum fines in the magistrate’s courts. Previously there was a £5000.00 cap. That cap has been removed.

Further, Improvement Notices and Hazard Awareness notices in relation to category 1 and category 2 hazards are a “relevant notice” for the purposes of the proposed new section 21A of the Housing Act 1988, which is set to come in imminently with the Deregulation Bill. If the Bill is passed in its current form the new section 21A will provide that if a tenant complains in writing to the landlord regarding the condition of a dwelling house, and the landlord serves a section 21 notice, and after the landlord has served the section 21 notice the local authority serves an Improvement Notice or Hazard Awareness Notice, that section 21 notice will be invalid.

For those readers in need of a refresher, Hazard Awareness Notices, Improvement Notices and Prohibition Orders are part of the inspection and enforcement mechanism contained in the Housing Health and Safety Rating System introduced by the Housing Act 2004. A local authority has the right to inspect residential premises for hazards.

There are 29 hazards, in 6 main areas:

• Damp and mould, excess cold, excess heat
• Pollutants including asbestos, CO, Lead, Radiation
• Space and security, light (is there enough?) and noise (is there too much?)
• Hygiene, sanitation, water supply including adequacy of food preparation areas.
• Accidents – protection from falls, slips, trips on stairs, electric shocks, burns, scalds
• Collisions – structural hazards, poor design, explosions, collapse.

An environmental health officer, usually, but not always, following a request from a tenant, can attend a property and inspect for hazards. Each hazard identified is given a score based on the likelihood of an accident happening combined with the probable harm if it does happen. Depending on the score a hazard will be either a “category 1” hazard or a “category 2” hazard.

Category 1 hazards are the more serious.   A local authority must take enforcement action. Depending on the seriousness of the hazard the first step might be to attempt to deal with the matter informally by sending the landlord a “minded-to” letter, giving the landlord a time-limited chance to remove the hazard before taking enforcement measures. If the landlord does not comply, the local authority is likely to serve

an Improvement Notice ( this requires works to be undertaken to remove or minimise a hazard); or

a Prohibition Order ( this closes whole or part of the dwelling, or restricts the number of occupants); or

an Emergency Prohibition Order (If the hazard is thought to pose an “imminent risk of serious harm to the health and safety of any occupiers” in the property, the local authority might make an emergency prohibition order).

An Improvement Notice must set out in detail what the hazard is and set out clearly what work needs doing and a date by which the works must be started and completed. A Prohibition Order must set out what works must be done  for the order to be revoked. Failure to comply with an Improvement Notice or Prohibition Order constitutes an offence.  On conviction the fine until 12 March 2015 was capped at £5000.00. It is now unlimited. The local authority is entitled to recover the costs of enforcement, including the cost of an improvement notice.

Category 2 hazards are the less serious. The local authority has a power to take action, but not a duty. It can issue a Hazard Awareness Notice but there is no power to enforce. However if the Deregulation Bill is passed into law, a Hazard Awareness Notice served on a Landlord may be sufficient to invalidate a section 21 notice if the other conditions of the proposed section 21A are satisfied.

You can read more about the fines here.

You can follow the progress of the Deregulation Bill here.

 

Filed under: England & Wales, disrepair, HHSRS, Housing Act 2004, possession

More consultation over the Private Rental Sector

Due to the ever increasing demand for rental properties the Government have decided that a consultation on this area is needed. The discussion titled ‘Review of property conditions in the private rented sector’ is in its initial stages so no changes are imminent; but certain topics have been raised with a view to helping the system perform better and raise the standard of the housing industry to make sure tenants are protected and are able to live in a safe environment.

The intention of the consultation is to protect tenants from rogue landlords and agents but to try to balance this by not adversely affecting the good landlords/agents. The aim is to avoid imposing unnecessary legislation which could create more hassle, decrease much needed investment in private rented housing and result in further costs which will eventually be passed on to the tenant in the form of increased rent etc.

There are a number of topics that have been proposed as talking points for which they are inviting comments and suggestions. These include:

• Rights and responsibilities of landlords and tenants – How can it be made clearer to both sides what is required of them and what can be done if the other side has breached their obligations?
• Retaliatory evictions – How to prevent landlords from simply serving notice to evict a tenant that has notified them of necessary repairs to the property?
• Illegal evictions – Should the penalties against landlords convicted of illegal evictions be stricter?
• Safety conditions – Should smoke and carbon monoxide alarms be mandatory in all properties?
• Licensing of rented housing – Should there be mandatory licensing for all properties? Should there be voluntary accreditation schemes for Landlords so that the good landlords can be found more easily?
• Housing Health and Safety Rating System – Is more information required to make the system clearer for all parties?

This is a non-exhaustive list and so if you have any ideas of how to improve the housing market the details of where to send your proposals are detailed below and any suggestions made should be considered and discussed.

The closing date for responses is 28 March 2014 and they can be sent to PRSReview@communities.gsi.gov.uk

We will be looking to keep an eye on this and will update the blog when there are any further developments.

Filed under: England & Wales, comment, consultations, disrepair, HHSRS, HMOs, Housing Act 2004, LACORS, tenancy agreements

Landlords’ safety obligations

Thanks to our friends at Nearly Legal we have been alerted to the recent case of Gillian Drysdale v Joanne Hedges (2012) QBD 27/07/2012. A tenant slipped off some steep steps while moving her belongings in at the beginning of the tenancy and injured her back. The steps were painted with gloss paint which became slippery while wet, and there was a dangerous drop unprotected by railings. The tenant claimed against the landlord under section 2 of the Occupiers Liability Act 1957 (OLA), section 4 of the Defective Premises Act 1972 (DPA), as well as under his common law duties. You can read a full summary here.
In short it was decided:
1. Section 2 OLA did not apply at all – a landlord’s duty is defined in section 4 of the DPA and it is this Act which applies.
2. Section 4 DPA provides that where there is an express or implied right of access for the Landlord to carry out repairs, there is a general duty of care to occupiers (and their possessions) to take reasonable care to ensure safety from damage or injury as a result of any defect which the landlord is liable to repair, and which they are – or should be- aware of. (Note that this duty applies without actual notification if the landlord should reasonably have been aware). The court confirmed that these provisions did not translate into a duty to make safe.
3. Common law duty of care: the court confirmed the principle that there was no requirement to make safe a property let in a dangerous condition. ( In this particular case there was no common law requirement to make the drop safe, but there was a duty of care not to create an unnecessary risk of injury).
The claim was dismissed.
So what does this mean for Landlords? It does not mean that they can leave their tenanted properties in a dangerous condition. It means that the court confirmed the position with regard to the claimant’s claim and the landlord’s liability under the DPA, OLA and his common law duty of care. There are however safety standards set out in other legislation and regulations.
Landlords will be aware of the provisions of the Housing Act 2004. The Housing Health and Safety Rating System ( HHSRS) introduced by part one of the Act imposes a set of safety obligations on Landlords, including obligations in relation to slips, trips and falls. Under the HHSRS a local authority, by way of an environmental health officer, can inspect a property for hazards and require that remedial action be taken to diminish a risk. (NB, HHSRS applies to all residential properties, not just rental properties).
Houses in Multiple Occupation ( HMOs) are subject to enhanced safety obligations . See our blog here
Further all landlords will be aware of the Gas safety ( installation and use) Regulations 1998 which we have blogged on here.
So although in this particular case the tenant was unable to claim against the landlord under the heads of claim pleaded, there are nevertheless requirements on landlords to keep their properties safe. We often get queries on our Helpline as to safety in rental properties. Landlords and agents should bear in mind not only their repairing obligations but also the requirements of HHSRS and the raft of other legislation designed to keep occupiers safe.

Filed under: England & Wales, disrepair, gas safety, HHSRS, Housing Act 2004, LACORS

Disrepair…..

We often get asked by Landlords whether the council can inspect their houses and force them to carry out works. Therefore the answer is below:

The Building Act 1984 ss77 and ss78 allows local councils to take action where they believe a property is dangerous. Under s77 they can apply to the Magistrates Court for an order that the owner of the building repair and under s78 the council can do the work itself and claim the money back from the owner of the property, but only if it is not reasonable to proceed under s77.

Swindon BC v Forefront Estates Ltd concerned a Grade II listed building called the Institute which had originally been designed to provide recreation and education for railway employees but at the time planning permission had been granted to turn it into flats and Forefront owned it. It came to the attention of Swindon Council that the Institute, and particularly its roof, may be dangerous. It carried out various inspections to the property and deemed that this was indeed the case and the roof was in imminent danger of collapse. It carried out the work needed to make it safe and sought to claim the sums expended back from Forefront. When Forefront did not pay, the Council issued a claim against it and Forefront put in a defence that the works might reasonably have been carried out under s77.

The High Court found that the Council could not reasonably have proceeded under s77, largely based on two grounds. The first was that the roof of the property had been found to contain asbestos and lead paint and there was a real danger that this could be dispersed into the air in a busy area used by members of the public and some 450 people would have to be advised to keep doors and windows closed and stay inside their houses. The second point was that there was a real risk that falling masonry could land on a passer by or someone seeking shelter in the building. The Council was awarded the sum of £331,242.69 and costs of over £60,000.

In short, yes the council can even where the property is not Let!

Filed under: England & Wales, FLW Article, disrepair, legislation

Does it form part of the structure or not?

In Grand v Gill, the landlord had a damages and costs award made against him for disrepair.

Grand entered into an assured shorthold tenancy on the 21 November 2004. The tenancy continued thereafter on a statutory periodic tenancy. Grand occupied the property with her daughter who is now over the age of 18.

Grand made a claim against her landlord, Gill, who had a long lease interest in the property, for harassment, personal injury, breach of the quiet enjoyment covenant and disrepair.

The main concern here was the disrepair. Grand’s daughter began sleeping in the lounge due to the damp and mould in her room. There was a problem with water ingress due to a damaged roof and poor guttering. However these issues did not form part of the landlord’s demise. Finally the gas-fired boiler broke down frequently and worked inefficiently. Damages for the disrepair amounted to £5,250 with damages for the breach of quiet enjoyment standing at £350.

Grand appealed. Grand’s legal representative argued that the award for the damp failed to take into account the fact that Gill was not just in breach of his obligations in relation to the heating problems which contributed to the damp, but also the omission to repair damaged plaster.

Expert reports had been obtained and they concluded that there was damaged plasterwork in the lounge due to penetrating dampness. The report suggested that Gill needed to hack off the damaged plaster and replace. Gill did not undertake these works. If this plaster formed part of the structure of the property Gill was indeed liable for this both pursuant to the terms of the agreement and Section 11 of the Landlord and Tenant Act 1985.

The Court of Appeal held that plaster is an essential part of the creation and shaping of the ceiling or partition wall, which give a dwellinghouse it’s appearance and shape. Plaster is a constructional finish to Walls and ceilings, to which the decoration is applied. Plaster is not a decorative finish and Gill is accordingly liable.

The damages were not referred back to the lower court because they were minor in the grand scheme of things. Therefore the court assessed damages in a summary manner at £750 to replace the £600 that was awarded for the damp.

The issue of whether plaster is structural, and therefore part of the section 11 obligations, or decorative and not has been floating back and forth in the higher courts for some time without a clear answer. In the judgement itself many cases are considered but this is the first case where the issue seems to be clarified and landlords are now held accountable for damaged plaster. In many cases this is irrelevant because the landlord assumes an obligation in the lease for plaster work among other things. However, this is not always the case.

While the damages were not increased by much it is the general principle that matters. The concept that anything which is to act as a support for paint or other decorative material is structural could be applied to a number of other areas and could have far reaching effects.

Filed under: England & Wales, FLW Article, disrepair, litigation, long lease

Not an AST?

In Kahlon v Isherwood the court held that a tenant that had a Assured Tenancy but agreed to the grant of an Assured Shorthold Tenancy as part of a settlement of court proceedings was, in fact, still an Assured Tenant.

Isherwood became a tenant in 1994. Since 2000 there had been 3 claims for possession due to rent arrears. On the third occasion the parties agreed to mediate and reached an amicable solution to Kahlon’s claim for arrears and Isherwood’s claim for disrepair. As part of this agreement Isherwood also agreed to sign a new Assured Shorthold tenancy for a period of 12 months and in return arrears of rent were written off.

The ‘new’ tenancy term began on the 2 June 2008. This agreement included a break clause at any time upon the expiry of 2 months notice. The ‘new’ tenancy did not have the same security of tenure as an assured tenancy where such notice would be ineffective as a means to end the tenancy.

On the 31 March 2009 Kahlon served notice on Isherwood to expire on the 2 June 2009. Upon the expiry of the notice possession proceedings were issued and Isherwood defended claiming he was an Assured tenant.

The county court rejected Isherwood’s defence and awarded Kahlon possession. Isherwood appealed.

The Court of Appeal held that when a tenant losses his security of tenure he must be fully aware of the effect of this change in status. That in this case Isherwood should have been served with a prescribed notice pursuant to section 20 and schedule 2A of the Housing Act 1988.  This notice has a prescribed form and must  include a warning of the legal consequences of becoming an Assured Shorthold tenant and this would have assisted Isherwood in making an informed decision about the change of status.

The court held that in the absence of this notice Isherwood was still an Assured tenant and set the order for possession aside.  The notice requirements were not negotiable and could not be waived by the court even where the original agreement which demoted the tenancy had been approved by the court.

Whilst the decision seems a little unfair on the landlord who wrote off a substantial amount of arrears as part of the mediation agreement the court made the only decision available to it. The legislation makes the process very clear and attempts to circumvent the procedure will fail.  Care should be taken when entering into any form of agreement to demote a tenancy from Assured to Assured Shorthold and advice should be sought.

Filed under: England & Wales, FLW Article, comment, disrepair, legislation, possession, tenancy agreements

Drafting….

The pitfalls of bad drafting – be warned!

In Perriam Limited v Wayne and Daly, the High Court had to decide whether Wayne and Daly were still liable pursuant to a Deed of Variation (“Deed”) they entered into.

Wayne and Daly were the guarantors under a commercial lease with Perriam. Perriam pursuant to the Deed was attempting to recover for dilapidations, unpaid rent and service charges amongst other things.

The decision with regards to the service charges etc is not relevant for the purposes of this article.

The Deed was executed on the 24th April 2007 and pursuant to clause 4.2 Wayne and Daly agreed that:

“the obligations of the tenant in the lease shall be varied so that there is no continuing obligation to repair, keep in repair or replace the external windows in the premises”.

Wayne and Daly argued before the High Court that the purpose of clause 4.2 was to release the commercial tenant, Ideas’ (now insolvent) and therefore them, from any continuing obligation in respect of the windows as at the 24th April 2007 and that meant that they were therefore not now liable.

Wayne and Daly further argued that the commercial purpose of the agreement was:

“So far as the external windows were concerned, the agreement was that there should be no continuing obligation in the sense of no ongoing liability to replace or repair whensoever the windows fell into disrepair and similarly no obligation to discharge any of the remaining repairing obligations. Mr Manning had the deed drawn up by his firm, Fox Hayes…We therefore signed the deed believing that we were thereby released from any ongoing personal liability to guarantee any of Ideas’ obligations under the lease and that Ideas were released from any liability to maintain external windows.”

The court was a little derogatory about the drafting of the Deed which included a catalogue of errors such as referring to Wayne and Daly as tenants and failing to draft a Deed which reflected the agreement reached by the parties.

The court therefore had to determine if Wayne and Daly were liable for the dilapidations. Upon listening to the arguments of both sides the court decided that in the absence of a date in clause 4.2 the intention of the parties was for liability to cease immediately upon the Deed being executed. That even on the reading of the wording of the clause this made common sense because there was no reference to a future event in the clause.

The court then went further and held that the wording of clause 4.2 meant that Wayne and Daly were no longer liable in respect of the windows. The basis for this decision was that the Deed failed to address the issue of the condition of the windows and where and when Wayne and Daly’s liability would end. That it strained common sense to pursue a claim for the windows when it was not mentioned in the Deed and in fact made it impossible to pursue due to the lack of a schedule of condition amongst other things.

Clause 4.2 did therefore operate in the courts interpretation as a release to Wayne and Daly, such that after the 24th April 2007, they had no liability for the condition of the windows. The clause therefore provided them with a complete defence to the claim for the costs of the dilapidations’.

When documents like this Deed are put before the courts the commercial reality and the obvious intention of the parties is usually the deciding factor. Therefore if you intended for something to happen then you are advised to ensure that a clause reflecting that intention is in the agreement. Badly drafted documents are common especially in our line of work but its unnecessary when templates can be purchased and advice sought. Cutting corners is simply to risky and potentially expensive.

Filed under: England & Wales, FLW Article, comment, commercial lease, disrepair, legislation

Carbon Monoxide

In December 2010 the Health and Safety Executive released a Safety Notice to raise awareness of the potential dangers from certain types of flues connected to gas-fired central heating installations in some properties.

Unfortunately the Notice was released following the death of a person in a property earlier that year but there is now an obligation on Landlords to take action before the 31 December 2012.

Where boilers are located away from external walls, flues are more likely to run through ceiling (or wall) voids. In such cases when the gas appliance is serviced or maintained it can be difficult, if not impossible, to determine whether the flue has been installed correctly or whether it is still in good condition.

Unless the gas engineer can make these checks they cannot ensure that the flue from the boiler is safe in order to comply with their legal duties. The engineer will therefore only be able to comply with his legal obligation if appropriate inspection hatches have been installed. Landlords are advised that after the 31 December 2012 if the hatches have not been installed the gas engineer will not carry out the inspection.

If the flue is not inspected and a fault overlooked, dangerous levels of carbon monoxide (CO) could be released into the living accommodation. CO is a colourless, odourless, tasteless, poisonous gas produced by incomplete burning of carbon-based fuels. It stops the blood from bringing oxygen to cells, tissues, and organs and can kill quickly, without warning.

We have blogged on the dangers of CO poisoning here and whilst landlords will note they have approximately 2 years to install the hatches, action should be taken sooner rather than later.

Filed under: England & Wales, England only, comment, disrepair, gas safety

Unlawful Eviction

We very rarely get asked questions about the possible consequences of an unlawful eviction where there has been violence. This is possibly a good thing or possibly a situation that agents stay clear of.

However, some recent cases have prompted this article only to provide some guidance to those that face such a situation.

In Boyle v Musso, Mr Boyle, began withholding rent due to some disrepair at the property. Rather than carrying out the repairs pursuant to the landlords section 11 repairing obligations, the landlord attended the property with another man and assaulted Mr Boyle.

The landlord was convicted of assault occasioning actual bodily harm and upon failing to reply to Mr Boyle’s civil claim for unlawful eviction also had a default judgement entered against him.

The judge noted that Mr Boyle had healed relatively quickly but he was left suffering from depression and panic attacks. The judge therefore found that Mr Boyle was left with serious and debilitating continuing anxiety as a result of the attack and awarded:

£15,000 for trespass to the person, to include injury to feelings;
£2,000 damages for finding that the dispute was for withholding rent;
£4,000 for breach of the quite enjoyment covenant;
£750 for loss of belongings;
and then finally the return of the deposit and three times the amount of the deposit for failing to register it with a tenancy deposit scheme.

In Strydom v Fowler, Mr Fowler fell into rent arrears. His landlord issued possession proceedings but while Mr Fowler was on holiday he changed the locks. When Mr Fowler forced his way into the house he found his landlord standing there with an iron bar. Mr Fowler ran away, but broke his heal when climbing over a gate. Mr Fowler therefore counterclaimed for breach of the quite enjoyment covenant and trespass.

The court awarded the landlord rent arrears and damages for dilapidations totalling £2,600. The court then went to assess Mr Fowler’s claim and stated that when making an assessment the court considers the difference of the value of the property occupied and unoccupied and reached a figure of £12,500. However the court then considered Mr Fowler’s actions and held that he had been unreasonable when failing to respond to the landlord for 5 weeks and failing to respond to the text messages the landlord had sent him in an attempt to resolve the situation.

The court therefore awarded Mr Fowler:

A reduction of the £12,500 to £2,500;
£3,000 for breach of the quite enjoyment covenant; and
£1,250 for trespass.

Whilst each case is decided on it’s own merits the courts are taking quite a hard line with landlords that decide to take matters into their own hands without consideration for the tenants rights. Whilst the landlord will often feel aggrieved about the length of the legal process when attempting to obtain possession they are reminded that the figures displayed above are a possible consequence of a heat of the moment decision.

Filed under: England & Wales, FLW Article, comment, disrepair, litigation, Unlawful Eviction

Cold Weather and Tenant’s Obligations

Given the current weather conditions it seemed appropriate to do a post on what happens if a property is left by the tenant and the pipes freeze and burst.

The short answer to the question is to consider how unreasonable the tenant’s conduct has been. If the tenant has only been away for a short period and during that time there has been an unexpected cold snap then the tenant will not be liable for burst pipes (Wycombe Health Authority v Barnett). If however, the weather is well-forecast or the tenant goes away fro an excessive period with no reasonable precautions taken then the Scottish case of Mickel v McCoard would be relevant. In this case it was held that the tenant was liable for burst pipes.

So, in each case, the tenants behaviour and its reasonableness in relation to the foreseeable danger is the key factor. Given that the current spell of cold weather has been well advertised any tenant who fails to take proper precautions is likely to be liable for any damage caused.

It should be noted that, separately to this, there is a responsibility for landlords under the HHSRS to make sure that homes do not suffer from excess cold. Local authorities will be keen to ensure that properties are properly insulated, have sufficient heating, and do not suffer form drafts and have the right to serve enforcement notices to ensure that this is the case.

Filed under: England & Wales, FLW Article, Scotland, disrepair

Damp- The Legal Position

At this time of year we are often asked about damp and mould growth in properties and who is liable for it. This can be a difficult question to answer and it often depends on precisely what is causing the damp.

Under Section 11(1)(a) Landlord and Tenant Act 1985 (LTA), Landlords have an obligation to “keep in repair the structure and exterior of the dwelling-house”. Due to the duty they owe to Tenants, they must repair the defect to the structure/exterior of the property which is resulting in damp. “To keep” means that there must have been some form of deterioration before the Landlord is liable to repair, therefore the mere existence of damp does not automatically mean that disrepair has occurred. Section 11 is a legally enforceable obligation under which Tenants are entitled to compensation.
The courts have ruled that the Landlord’s obligation is to repair only the structure and exterior of the “dwelling-house”. This means that if the property is part of a larger building, the obligation is only in respect of the dwelling in question and not that of whole building (Campden Hill Towers Ltd v Gardner). However, anything reasonably considered to form part of that dwelling will fall within the obligation e.g. the roof of an entire block where the dwelling is the top floor flat (Douglas-Scott v Scorgie).
The issue of whether the Landlord owes a duty becomes complex when the question of “what is structure and exterior” is raised. In Quick v Taff Ely BC severe damp was caused by large metal framed windows and some rooms in the property were rendered uninhabitable due to the damage caused to furniture, clothing, decorations and bedding; the courts described the living conditions as “appalling”. Nevertheless the Landlord was under no obligation to remedy the damp because his duty was to repair only the structure and exterior (which includes the walls and windows to the property), neither of which was damaged. Likewise, in Post Office v Aquarius Properties Ltd where the water table in the area had risen. Due to a defective joint between the walls and the floor the basement became ankle deep in water, however because the joint was still in the same condition as when the property was constructed there was no evidence of that the water had caused damage to the structure or exterior.

The position was clarified in Southwark LBC v McIntosh where it was stated:

the tenant must establish either that the damp arises from a breach of the covenant [i.e. that the structure or exterior has deteriorated and the Landlord has not provided a remedy] OR that the damp has itself caused damage to the structure or exterior and that this damage, in turn, has caused the damp of which complaint is made.

In Staves v Leeds City Council, damp had caused damage to parts of the plaster on the walls. Therefore, the Landlord was under an obligation to repair. However, this judgment has been subject to some discussion and there are judgments which rule to the contrary i.e. that plaster is decoration and not part of the wall, so the matter is not clear cut. It depends upon whether the plaster is considered to constitute part of the structure or exterior.

Finally, it should be noted that even if the Tenancy Agreement does not expressly burden the Landlord with the obligation to repair, it is an implied term of any agreement under seven years in duration due to Section 11 LTA.

Alternatively, the dampness may be due to the Tenant(s)’ actions e.g. incorrect use or the heating system of drying clothes indoors. This is known as condensation damp which is caused by water vapour in the air condensing when it contacts a cold surface. The Landlord does not have an obligation to remedy this type of damp. This obligation falls upon the Tenant due to their duty to act in a “tenant like manner”.

It should be remembered that under the HHSRS, a part of the Housing Act 2004 a higher burden can be placed upon Landlords to rectify dampness and mould in properties; they can be made to do more than put a house in repair as would be required under Section 11 (LTA). Under HHSRS ratings many properties have been found to score highly in this category of environmental hazards due to issues such as lack of damp proofing or poor ventilation. As a result of such defects, local authority EHOs can serve an improvement notice on Landlords to remedy the problem. Therefore, if a similar scenario arose today as in the case of Quick, the tenant could approach the Council and the landlord would then probably be served notice to remedy the problem. However, this is not disrepair in the strict sense and Tenants are not able to recover compensation from Landlords if such a notice is served. Additionally, Tenants can only seek a remedy under HHSRS by reporting the damp to their local authority.

In general terms, most damp issues are a result of:

1. penetrating damp,
2. rising damp, or
3. condensation damp.

It is necessary to assess the source of damp or mould before any further advice can be given as to who the burden falls upon to correct the defect. If the damp or mould is as a result of something that has been broken or is no longer functioning as it should then it will probably be the landlord’s responsibility. If it is simply as a result of the property being old or not constructed to modern standards then the landlord is probably not liable but the local authority could force him to do the work under the HHSRS.

Filed under: England & Wales, FLW Article, disrepair

Bed Bugs and Landlord’s Liability

A recent story on the BBC News website highlights that bed bugs are back and spreading in the USA and Western Europe. We are often asked about pests and who is responsible for their eradication.

During the tenancy if pests arise it will normally be up to the tenant to deal with them (after all the property has been let to them) unless there is some alternative provision in the tenancy agreement. If the cause of the pests is disrepair at the property (for example mice entering through holes in the external walls) then the landlord may also have some responsibility to resolve the issue.

Where pests are present at the start of the tenancy the issue is more complex. A landlord does not ordinarily give a warranty to a tenant that the property is pest free and habitable at the outset of the tenancy. Therefore, it is debatable whether a landlord is necessarily liable for the presence of pests in a property at the start of a tenancy. However, where a property is let furnished a warranty is given that the property is pest-free at the outset of the tenancy (although no warranty is given that it will stay that way) and where a tenant discovers that a furnished property, as a whole, is infested they may be able to declare the tenancy repudiated, move out, and sue for damages following the principles laid down in Smith v Marrable. However, in this case the landlord was clearly refusing to deal with the issue and so it must be doubted whether the same actions could be taken if the landlord was unaware of the infestation and then took all reasonable steps to deal with it on it being brought to his attention. It should also be noted that in Smith the whole property was infested with rats and so the fact that bed bugs were present in a bed would not necessarily be sufficient to allow the tenant to claim repudiation.

If the property is an HMO then the Management of Houses in Multiple Occupation Regulations will apply. These create a prosecutable offence if the property is not clean at start of tenancy and it may be the case that a Court would hold that the definition of clean should include freedom from pests. However, this has not been tested to our knowledge.

Where tenants import fleas of bugs into a property then the Courts have held that this is a breach of the tenant’s implied obligation to use the property in a tenant-like manner.

In short, all landlords should do their utmost to ensure that there are no pests in a property at the outset of a tenancy. Using a professional firm may give the landlord some fallback should pests be found later. Failure to do so might involve serious consequences.

Filed under: England & Wales, FLW Article, disrepair, pests

Costs and the Disrepair Pre-Action Protocol

In a recent case the Court of Appeal considered the issue of legal costs on a claim using the Disrepair Pre-Action Protocol.
In Birmingham City Council v Lee the Council was initially given notice of disrepair in Mrs Lee’s property by solicitors in a letter which made mention of the protocol. The Council repaired the property during the course of the following month and negotiations then took place with regard to payment for damages and Mrs Lee’s legal costs.  These apparently broke down and a claim was issued in the for damages of between £1000-5000.  As the repairs were complete there was no claim for specific performance and as the amount claimed fell below £5000 the matter was properly allocated to the small claims track.  However, Mrs Lee sought damages on the fast track scale for, at the minimum, the time between notification and completion of the repairs.  It seems fairly likely from thr papers that the action was largely begun in an effort to obtain legal costs.

At first instance the Deputy District Judge refused costs.  On the tenant’s appeal the Circuit Judge made a costs order allowing costs prior to allocation to be reserved for consideration by the trial judge at the conclusion of the matter.  The Council appealed this decision to the Court of Appeal.

In a unanimous verdict the Court (led by Hughes LJ) declined the appeal in its main points, largely because it left too much to be decided later.  They substituted an order awarding Mrs Lee costs up until completion of the repairs.

While both sides made much in argument about the nature of litigation funding the Court set this aside and took the view that it should decide whether an award of pre-allocation costs was necessary in order to make the protocol operate as intended.

Ultimately the Court decided that this was necessary otherwise landlords would have the option of refusing to repair until a pre-action letter was issued then completing all repairs pre-allocation, having the matter allocated to the small claims track, and thereby having no liability for the tenant’s reasonably incurred legal costs in forcing the landlord to carry out works in the first place.

This decision will prove a boon to a number of public assistance firms as it will increase their ability to recover legal costs where they have assisted tenants under the protocol, even where the landlord immediatley does the works required.  From a landlord’s point of view it reinforces the need to get works done early as once a pre-action protocol letter arrives the legal costs meter will start ticking.

Filed under: Uncategorized, costs, disrepair, litigation