Court awards 100% of rent in damages to tenant whose property was unfit for habitation

A shorter summary can also be found in the Housing Conditions: Update section of Legal Action, February 2024 issue.

The Claimant had brought a claim for possession based on rent arrears in respect of an assured shorthold tenancy. The First Defendant did not take part in the proceedings. The Second Defendant defended and counterclaimed for an injunction for works and damages for disrepair and a failure to comply with deposit protection rules.

The Claimant alleged rent arrears of over £55,000, relying on grounds 8, 10 and 11 of Schedule 2 of the Housing Act 1988.

The property is a one-bedroom flat split in two levels. The lower one has the entrance lobby. The stairs go up to the landing. The bedroom is on the left and the bathroom in front. There is a corridor on the right towards the kitchen and living room. The bathroom has a bathtub, sink and WC. The kitchen has a small dining area. The property is on the eighth floor of a tall block of flats. The block is in the Aylesbury Estate.

At the time of the trial the block of flats had been scheduled for demolition in 2026.

The Second Defendant had complained about numerous and serious problems with the property since the outset of the tenancy.  The extent of the disrepair and defects of the property led to the expert surveyor, Ms De Vos, finding in her report of July 2023 that the property was unfit for human habitation and uninhabitable. Ms De Vos had made the following findings in her report:

6.3… it is clear that there has been a historic deficiency in the consistent provision of heating supplied by the communal heating system causing her to rely on stand-alone, electric heaters.

6.6… there is active leakage through the ceiling above the front entrance lobby to the lower level, and associated deterioration of the lobby ceiling, wall and floor finishes. The source of the leakage is not clear; however, it would appear probable that failure of the pipework running through the suspended timber floor between the internal storeys of the property is to blame.

6.7 The condition of the bathroom is unhygienic and unsanitary.

6.8 Not only has the bathroom been affected by the foul water leakage through the ceiling, but the bath is also virtually unusable, and when in use causes water to seep over the bathroom floor, and through the partition, damaging the decorative finishes, flooring, furniture and possessions within the adjoining bedroom.

6.9 The partially detached wash hand basin is a hazard, and the leaking foul water from the toilet pan, is causing an unhealthy and hazardous environment, and damage to the timber boarding of the bathroom floor. The lack of adequate extraction provided by the communal ventilation system, results in an extremely unpleasant internal situation.

6.10 Similarly, the leakage from the waste pipework serving the kitchen sink is resulting in a lack of usable facility for the preparation of food and cleaning of utensils and cookware. The consistent leakage also appears to be causing the deterioration of the timber floor boarding around the sink base unit.

6.13 The water leakage has also damaged the textured coating to ceilings; in view of the age of the block, it is possible that the coating contains asbestos fibres, and sampling and analysis of the textured finish should be undertaken by a suitably qualified and competent asbestos specialist to determine content, and therefore risk, if any, to the resident and her son.

6.14 I am also of the opinion that once the source of all leaks is determined and resolved, the electrical installation must be comprehensively inspected and tested, by a suitably qualified and competent electrical engineer, and all identified faults rectified, ensuring all light fittings, switches and sockets are in safe working order.

6.16 Finally, the window lights and frames within the front bedroom are affected by significant levels of mould growth, which in my view is as a result of the combination of the low-thermal efficiency of the metal single-glazed windows, lack of heating and extensive water ingress.

6.18 It is my opinion that the water ingress and dampness through the structural compartment floor forming the ceiling of the upper storey of Flat 108 Taplow, Thurlow Street, London SE17 2UJ constitute disrepair under Section 11(1)(a) of the Landlord and Tenant Act 1985, which expressly includes, ‘the structure and exterior of the dwelling-house’, despite the ingress being most likely to be caused by the defects to services within the flat or flats above the subject property, and not directly within the control of the Landlord of Flat 108.

6.19 Further it is my opinion the poor condition of the sanitary ware and kitchen sink, which render these facilities virtually unusable, also constitutes disrepair under Section 11(1)(b) of the Landlord and Tenant Act 1985, which expressly includes, ‘installations in the dwellinghouse for the supply of water, gas and electricity and for sanitation (including basins, sinks, baths and sanitary conveniences…)’.

6.20 The apparent failure of the communal heating system, and the lack of working radiators throughout the dwelling, also in my opinion, constitutes disrepair under Section 11(1)(c) of the Landlord and Tenant Act 1985, which expressly includes, ‘installations in the dwelling-house for space heating and heating water)’.

6.21 In addition, it is my opinion that the Landlord has been in breach of their duty under section 4 of the Defective Premises Act 1972 for the water ingress and associated damage within the subject property.

6.22 The extent of the water ingress, which has occurred over the life of the resident’s tenancy, also in my opinion constitutes a statutory nuisance under section 79(1)(a) of the Environmental Protection Act (EPA) 1990, as the defects have caused damage to decorations and furnishings, and inconvenience and nuisance to the resident.

6.23 In consideration of the provisions of the Homes (Fitness for Human Habitation) Act 2018, it is my opinion that the property is not habitable.

6.25 In light of the significance of the defects, I am of the opinion in this case, the dwelling is not only unfit for habitation, as defined under the Act, but is also uninhabitable, and that Ms Jimenez Santana and her son should be rehoused, without delay.

Since 18th October 2023, the Second Defendant had not been able to reside at the property due to an Emergency Prohibition Order issued by the London Borough of Southwark. She was placed in temporary accommodation a considerable distance away for which she also had to pay towards the rent.

The Claimant’s claim for possession was struck out due to non-payment of the trial fee. The tenant’s counterclaim proceeded. The Claimant did not attend the re-listed trial.

The court was referred to the following cases for the question of quantum of damages:

• English Churches Housing Group v Shine [2004] EWCA Civ 434 in which the Court of Appeal awarded 75% of the rent in damages when the tenant was living in very poor conditions, without a bathroom and a gas supply.
• Fakhari v Newman, January 2011 (Legal Action 19), in which the court awarded 75% of the rent in damages during a period when the boiler had broken down leaving the tenant with no hot water or heating. The property was also draughty and there were leaks.
• Shazad v Khan, January 2011 (Legal Action 20), in which the court awarded 75% of the rent in damages during a period where the tenant suffered from water penetration, with one unusable room throughout the period and the second only usable during the summer months.
• Dezitter v Hammersmith and Fulham Homes (Central London County Court, 7 November 2023) in which the court awarded 100% of the rental value in damages for the period in which a home was found to be unfit for habitation.

Giving judgment, District Judge Naidoo found that the Second Defendant’s counterclaim was fully made out. Damages were awarded as follows:

• the inception of the tenancy– 19 March 2020 – 75% of the rent, totalling £22,726.56;
• 20 March 2020–17 October 2023 – 100% of the rent on the basis that the property was not fit for habitation, totalling £47,261.12; and
• 18 October 2023–15 December 2023 (the date of trial) – 150% of the rent, the judge having accepted that the Second Defendant had been suffering additional inconvenience since her move to interim accommodation due to its location and the fact that she had been liable to pay the rent for the Aylesbury Estate property in addition to the interim accommodation, totalling £3,091.68.

An uplift of 10% was then added following Simmons v Castle, giving a total of £80,387.29 for the disrepair counterclaim.

Additionally, the Claimant was ordered to return to the Second Defendant the deposit of £1,100 and pay damages of £6,600 (three times the deposit) in respect of the failure to protect the deposit at the inception of the original tenancy (£3,300) and again when it became statutorily periodic (an additional £3,300).

The Claimant landlord was also ordered to pay the Second Defendant’s costs.

Whilst only a first-instance County Court decision, practitioners may find this case helpful for assessing quantum of damages where a property is deemed not to be fit for human habitation. It is however worth highlighting that:

• the property was not only unfit for human habitation, but found by the expert report to be ‘uninhabitable’;
• the landlord’s defence to the counterclaim in this case amounted to little more than a bare denial;
• and in any event the landlord did not attend trial to give evidence or make submissions. The landlord did have legal representation until a few weeks before trial, but at the time of trial was acting as a litigant in person.