Housing Disrepair

HLPA Wednesday 20.01.10

HOUSING DISREPAIR

1 A BRIEF LOOK AT BURST PIPES

 The tenant must behave in a “tenant like manner”, which means that she must turn off the water and drain the tanks if she is going away in winter, see: Wycombe Area Health Authority v Barnett, 1982 5 HLR 84, CA, Housing Law Casebook Fourth Edition P5.21

 Arguably the alternative is to leave the heating on at a reasonable level in winter and many tenancy agreements contain express terms requiring this.

 No duty on either the landlord or the tenant to lag pipes and water tanks to protect them from bursting in exceptionally cold weather see: Wycombe Area Health Authority v Barnett.

 If the pipes burst through lack of lagging, the loss will “lie where it falls”

 But, if the pipes are in an area owned and controlled by the landlord, for example a communal roof space, then the pipes will be in disrepair from the moment they burst and the landlord will be liable to the tenant for any loss arising, see Passley v Wandsworth LBC (1998) 30 HLR 165 CA, Housing Law Casebook Fourth Edition P6.8

2 INFESTATIONS

Case Study 1

Ms. Brown lives on the ground floor of a Victorian House converted into two flats. For the past five years the flat has been invaded by mice every winter. The mice nest behind the kitchen units and have become so bold that they run across the floor when Ms. Brown is sitting in the kitchen in the evening. They eat all of the food stuffs and her children now refuse to come into the kitchen.

Ms. Brown is a housing association tenant and her landlord has involved a pest control company, but she is now being told that there is no obvious way that the mice are gaining entry to her flat and other than laying bait on a regular basis, there is nothing that can be done and she can expect the infestations to continue.

 What, if any, legal remedy does Ms. Brown have?  Would your advice be different if she was living on the second floor of a large block of flats?

Admin/HLPA/100120 HLPA Meeting - Infestation1 Case Study 2

Ms. Matheson is a student and in December 2009 she viewed a flat with three prospective co-tenants. When they were shown round they noticed and pointed out that there were dark patches on the walls. The agent told them that the decoration was a bit old, but it was “nothing to worry about”. Apart from the fact that the flat did look a bit shabby, it was exactly what the tenants wanted and they therefore returned to the agent’s office and signed an assured shorthold tenancy for a fixed term of one year beginning on 1 st January 2010.

Within days of moving in the tenants were being bitten and it is now clear that the flat is infested with bed bugs. It turns out that the patches on the wall are where the bugs are nesting under the wallpaper. Ms. Matheson has now discovered from the neighbours that the previous tenants moved out because of the infestation and that the flat was fumigated about a week before she viewed it. Ms. Matheson and her co-tenants want to leave.

 Advise Ms. Matheson of her legal remedies.

Case Study 3

The same facts as in case study 2 apply, but this time the tenancy began in July 2009 and as soon as the tenants complained, the managing agents sent a pest control company round. The flat has been sprayed and certain furnishings have been replaced, but the pest control company is now saying that the mattresses need to be replaced and the landlord does not want to do this. In this case the tenants like the flat and want to stay on, even though they are being bitten. They have not involved the local council and they have been paying full rent up until now. However, they would like some compensation and the landlord is refusing to reply to their emails proposing this.

Advise the tenants on:-

 what are their legal remedies?  how much, if any, compensation might they be entitled to?  if they do decide to leave, can they do so?

TYPES OF INFESTATION

 Cockroaches  Pharaoh ants  Bed bugs  fleas  Mice  Rats

Admin/HLPA/100120 HLPA Meeting - Infestation2  Squirrels  Pigeons

TENANTS’ RIGHTS

Tenancy Agreements

 Express or implied terms in a tenancy agreement e.g. a term stating that the property will be kept in “good condition” – see Welsh v Greenwich LBC (2001) 33 HLR 438, CA, Housing Law Casebook Fourth Edition P3.12

 And see Johnson v Sheffield CC August 1994 Legal Action 16, Sheffield County Court, where the tenancy agreement provided that the landlord keep the dwelling “fit to live in”.

 Repairing obligation implied by s.11 Landlord and Tenant Act 1985 will only assist where the rodents or insects are gaining access as a result of disrepair, for example, fractured drains or holed brickwork (s.11(1)a LTA 1985)

 Breach of quiet enjoyment - of little assistance, because it does not apply to things done before the grant of a tenancy, even though they may have continuing consequences Southwark LBC v Mills [2001] 1 AC 1, HL, Housing Law Casebook Fourth Edition P4.2

 Modern trend is against the implication of new implied terms - see e.g. Adami v Lincoln Grange Management Limited (1997) 30 HLR 982, CA Housing Law Casebook Fourth Edition P4.3

 S.8 Landlord and Tenant Act 1985 – implies that the premises are fit for human habitation at the date of the letting; and that the premises will be kept fit for habitation, by the landlord, throughout the duration of the tenancy – no use at all because only applies to tenancies where the maximum annual rent is less than £80 in Inner London, £52 elsewhere.

 Lettings of furnished dwellings - implied term that the premises are fit for human habitation at the start of the tenancy – see Smith v Marrable [1843] 11 M&W 5, Housing Law Casebook Fourth Edition P11.53 ; Hart v Windsor (1844) 12 M&W 68; Wilson v Finch – Hatton (1877) 2 Ex D 336

 Note that the term only implies that premises are fit when let, but will be broken if the dwelling is initially unfit, but the lack of fitness becomes obvious only at a later stage of the tenancy – Harrison v Mallet [1886] 3TLR 58.

Admin/HLPA/100120 HLPA Meeting - Infestation3  NB: a term excluding this implied obligation will very likely be held to be void by virtue of the unfair terms in Consumer Contract Regulations 1999 – see Guidance on unfair terms in tenancy agreements OFT 356 para. 3.14.

 No greater obligation on a social landlord than on a private landlord in respect of fitness for human habitation – see Lee v Leeds CC [2002] EWCA Civ 6; [2002] 1 WLR1488, Housing Law Casebook Fourth Edition P4.9.

 LTA 1985 s.11(2) states that a landlord is not obliged to do repairs for which the tenant is liable by virtue of his duty to use the premises in a tenant-like manner. If the infestation is caused by the tenant’s misuse of the premises, e.g. lack of hygiene, then the tenant will be liable to the landlord for the infestation. Essentially this will be a question of causation.

Negligence is of little use where the landlord has not carried out building work, see Cavalier v Pope [1906] AC428, HL and Rimmer v Liverpool CC [1985] QB 1, CA where the Court of Appeal expressed the view that the immunity of the landlord, although questionable is still “too deeply entrenched in our law for any court below the highest to disturb or destroy it” and that to do so would possibly be “so great a change in the law as to require legislation”.

 Where the landlord has designed or built the dwelling he will owe the same duty of care as is owed by a builder who does not then become the landlord and might therefore be liable in negligence if a failure to construct or convert in a professional or workmanlike manner allows the property to become unfit for human habitation – s.1 Defective Premises Act 1972.

 The same duty of care of a contractor will be owed in relation to work carried out after the tenancy begins. So, a failure to treat an infestation of bugs with adequate materials will make the landlord liable for subsequent damage caused – Sharpe v Manchester MDC (1977) 5HLR 71 CA. See also Clark v Wandsworth LBC Housing Law Case Book fourth edition para. P7.19

 NB: Although s.3 of The Defective Premises Act 1972 removes immunity for landlords in tort for defective work carried out before the letting, the common law has not yet imposed such a liability on landlords.

Admin/HLPA/100120 HLPA Meeting - Infestation4 Common parts

 The general immunity of landlords in negligence does not extend to protect a landlord who negligently fails to repair or maintain the common parts of the property (Cockburn v Smith [1924] 2KB 119, CA; Duke of Westminster v Guild [1985] QB 688, CA, Housing Law Case Book fourth edition P4.6 ; Lips v Older [2004] EWHC 1686 (QB), Housing Law Case Book fourth edition P7.14.

 A landlord will not be liable in negligence for the acts of an independent sub-contractor – D&F Estates v Church Commissioners [1989] AC 177, HL, Housing Law Case Book fourth edition P7.1.

Nuisance

 Use of land still retained by the landlord in a way which unduly interferes with the tenant’s use or enjoyment of their neighbouring premises – see Sharpe v Manchester MDC where cockroaches had probably entered the tenant’s flat through the service ducts in the common parts of the block of flats. The same principle will apply to other infestations such as pharaoh ants, rats or mice.  Note there was no such liability in Habinteg Housing Association v James (1995) 27 HLR 299, CA, where there were no common parts retained by the landlord and the reserved rights of entry to the flats did not give the landlord sufficient control over them to be liable for the failure to treat any infestation.  a tolerated trespasser has sufficient interest in land to claim in nuisance - See Pemberton v Southwark LBC [2000] 1 WLR 1672.  Landlord may also be liable for a nuisance caused by disrepair within neighbouring premises demised to another tenant where the landlord has an obligation to repair or has reserved the right to enter and repair expressly or by implication. E.g. mice entering through holed brickwork in another tenant’s premises.  Experience suggests the real issues here are proof and causation- use an EHO.

Statutory Rights

 If a tenant or visitor is injured or suffers financial loss as a result of infestation of the common parts, then s.2(2) of the Occupier’s Liability Act 1957 will assist.

 Defective Premises Act 1972 – s.1 see above. Limitation period - 6 years.

Admin/HLPA/100120 HLPA Meeting - Infestation5  Defective Premises Act 1972 – s.4 only applies where there is a repairing obligation or the landlord has reserved the right to enter and carry out remedial work, but applies to all of the land let, not just the dwelling house – see Smith v Bradford MBC (1982) 4HLR 86, CA; so it might assist where there is, e.g. a rat infestation in a garden arising from disrepair such as a broken garden wall where landlord has reserved right to repair. s.4 imposes a duty where landlord “ought …. to have known” of the likelihood of injury or damage, this goes beyond the usual requirement that the landlord has actual knowledge of the defect.

 Part III Environmental Protection Act 1990

 s.79(1)(a) - any premises in such a state as to be prejudicial to health or a nuisance

 s.79(1)(fa) - any insect emanating from relevant industrial, trade or business premises and being prejudicial to health or a nuisance.

 Action can only be taken by the local authority against the landlord if it can be shown that the incursion or infestation is caused by the “act, default or sufferance” of the landlord.

 s.79(1) puts a duty on a local authority to inspect from time to time to detect statutory nuisances and to take such steps as are reasonably practicable to investigate any complaints made by a person living within the local authority’s area.

 79(7) states that “prejudicial to health” means “injurious or likely to cause injury to health”

 s.80(1) EPA 1990 obliges a local authority to serve an abatement notice upon the person responsible for the nuisance where the local authority is satisfied that the statutory nuisance exists.

 s.82(1) enables “a person aggrieved” by a statutory nuisance to bring their own prosecution against the person responsible for the nuisance.

 See Ozmus v West Hampstead Housing Association Housing Law Case Book Fourth Edition P.16.39 Housing Association leased privately owned accommodation and sub-let it to Ms. Ozmus. She prosecuted under s.82 EPA. Association defended on basis it was not responsible for the infestation, because it did not own the property and the tenant’s handbook stated that the occupier was liable for “pest control”. Crown Court dismissed landlord’s appeal against prosecution. The Association was the person responsible for the premises within s.82 (4)(a).

 Also see Dent v Haringey LBC Housing Law Case Book 4th Edition P16.38.

Admin/HLPA/100120 HLPA Meeting - Infestation6 Tenant’s home infested with flying hide beetles (dermestes peruvianus). Evidence that the beetles fed on and breed in the rotting mummified carcasses of dead pigeons. The pigeons had gained access through defects in the roof covering. Court was satisfied by the expert evidence of the link between the beetles and the pigeon carcasses and rejected the proposition that the council was not responsible for the infestation. Nuisance order made requiring complete re-roofing within six months. Compensation of £1,000, fine of £50 and costs of £12,250 confirmed by Wood Green Crown Court

Prevention of Damage by Pests Act 1949

Part I – rats and mice.

s.2(1) “It shall be the duty of every local authority to take such steps as may be necessary to secure so far as practicable that their district is kept free from rats and mice, and in particular –

a) from time to time to carry out such inspections as may be necessary for the purpose aforesaid;

b) to destroy rats and mice on land of which they are the occupier and otherwise to keep such land so far as practicable free from rats and mice;

c) to enforce the duties of owners and occupiers of land under the following provisions of this part of the Act and to carry out such operations as are authorised by those provisions. “

 s.3 obligation of occupiers of land to notify local authority of rats and mice.  s.4 power of local authority to require action.

s.4(1) “ if in the case of any land it appears to the local authority, whether in consequence of a notice given in respect of the land under the last foregoing section or otherwise, that steps should be taken for the destruction of rats or mice on the land or otherwise for keeping the land free from rats or mice, they may serve on the owner or occupier of the land a notice requiring him to take, within such reasonable period as may be specified in the notice, such reasonable steps for the purpose aforesaid as maybe so specified; and where the owner of any land is not also the occupier thereof, separate notices may be served under this section on the owner and on the occupier.”

Housing Act 2004 –  puts a duty on a local authority to identify whether hazards are present and to classify them. “Hazard” means any risk of harm to the health or safety of an actual or potential occupier which arises from a deficiency in the dwelling or any building or land in the vicinity. Deficiency can be caused

Admin/HLPA/100120 HLPA Meeting - Infestation7 by poor construction, absence of maintenance, want of repair or otherwise. If there is a high likelihood of a person suffering serious harm from the hazard, it will be a category 1 hazard where the local authority must take action.

 The range of enforcement actions include: o service of a hazard awareness notice o issuing an improvement notice o making a prohibition order o making a demolition order o declaring a clearance area

 Rats often live in sewers and drains - s.21 and s.59 of The Building Act 1984 gives local authorities extensive powers to require owners (and occupiers) to take remedial action where a drain or sewer is prejudicial to health or nuisance. In default the council may itself carry out the necessary work and recover its costs thereafter.

WALKING AWAY

 Often the tenant will want to leave a fixed term tenancy of an infested dwelling  Consider misrepresentation – was the tenant induced to enter the contract by representations made by the landlord or his agent? You need: o A statement made prior to formation of the contract, e.g. during negotiations. o Must be an untrue statement of fact, not a statement of opinion or a mere commendation e.g. “This is a lovely flat, I’m sure you will be happy here”- commendation and opinion. o A statement of future intentions will only amount to misrepresentation if the tenant can prove that at the time that the landlord/ agent made the statement, he had no intention of carrying out his promise, i.e. he was fraudulent. o Statements qualified by “I think” or “I believe” will not normally result in an action for misrepresentation: Bisset v Wilkinson [1927] AC 177 but an opinion may be regarded as a statement of fact in a situation where

Admin/HLPA/100120 HLPA Meeting - Infestation8 one party possesses greater skill or knowledge than the other – Smith v Land House Property (1884) 28 Ch D 7 e.g. “I don’t think the property is infested” stated by an agent or landlord. o Silence does not amount to misrepresentation – there is no rule that the party must disclose facts to another (caveat emptor) – Fletcher v Krell (1873). However a concealed defect is an exception to this rule Schneider v Heath (1813). o The tenant must have been induced to enter the contract by the misrepresentation.  On discovering the misrepresentation the misled party can elect to affirm or rescind the contract.  Rescission - (restoring the parties back to their original position) so the tenant leaves the property as she found it and all rent and other payments made by her should be returned to her.  An election once unequivocally made whether for affirmation or rescission is determined for ever (Clough v London and North Western Rly Co (1871) LR 7 Exch26 at 35) so the tenant cannot equivocate. She has to decide whether to stay or go and then stick to that decision.  The tenant must tell the landlord of her decision to rescind within a reasonable time, unless he cannot be found (Car and Universal Finance Company v Caldwell [1976] 1QB 525).  S2(2) Misrepresentation Act 1967 gives the court a right to award damages instead of rescission  The right to rescission can be lost, inter alia by: o Affirmation - an act which suggests an intention to proceed with the contract, e.g. payment of rent o Lapse of time – if after misrepresentation discovered it can be evidence of affirmation o Injury to third parties - e.g. if by the time the tenant has discovered the misrepresentation the landlord has sold the premises to an innocent third party

 An untrue statement that does not amount to misrepresentation may still give rise to an action in damages but not rescission. Arguably the damages could be equivalent to any rent paid or due.

 Fundamental breach - A breach of contract so fundamental that it goes to the root of the agreement and allows the wronged party to repudiate (terminate performance of) the contract, in addition to entitling that party to sue for damages - Suisse Atlantique Societe D’Armement S.A. v NV Rotterdamsche: Kolen Centrale [1967] 1 AC 361

Admin/HLPA/100120 HLPA Meeting - Infestation9  See Hussein v Mehlman [1992] 2 EGLR 87 where serious disrepair was held to be a fundamental breach.  Smith v Marrable (see above) held that a large infestation by bed bugs rendered a property unfit, so it follows that serious infestations justify the tenant repudiating the contract.  NB. the right to repudiate is lost if the tenant waives the breach by treating the contract as if it is still in force, for example by paying further rent. Other actions can also be said to unequivocally recognises that the tenancy is continuing, e.g. seeking an injunction against the breach of covenant.

Caution : you should be very careful before advising a tenant who has signed a fixed term agreement that it is safe for them to repudiate or rescind a contract. If the Judge does not agree with your assessment of the case, the tenant could be found liable for the rent for the remainder of any fixed term. There is no duty on the landlord to mitigate by finding a replacement tenant (see White and Carter (Councils) Limited v McGregor [1962] AC 413, 431 as recently followed in Reichman and Dunn v Beveridge and Gauntlett [2006] EWCA Civ 1659).

DAMAGES

 How much? Arguably if premises are unfit, damages should be the equivalent of the rent. However, Judges are likely to find that there is some residual rental value, especially where the tenant does not vacate the premises.  In Earle -v- Charalambous [2006] EWCA Civ 1090 damp and water penetration to a top floor flat was so severe that the tenant had to move out. Even so, the damages award was just under half the rental value. However, note that the tenant only asked for 50% of the rent.  In English Churches Housing Group v Shine (2004) EWCA Civ 434, 75% of the rent was awarded for very poor conditions without a bathroom and gas supply.  In Clark v Wandsworth LBC 1994, Housing Law Case Book Fourth Edition at P7.19; infestation was described as being “worse than damp” - general damages of £3,500 were awarded for 18 months of cockroach infestation. Permission for the council to appeal to the Court of Appeal was refused.  In London and Quadrant Housing Trust v Riemy, Mayors and City county court, December 2008 Legal Action 31, damages at £300 per year were awarded for a minor mouse infestation caused by holes in the floorboards. The tenant had complained to his landlords and been told that he lived in an old house and mice were to be expected. In addition Mr Riemy was

Admin/HLPA/100120 HLPA Meeting - Infestation10 awarded special damages in relation to a carpet he had bought and laminate flooring in attempts to eradicate the infestation.  In Dadd v Christian Action HA, December 1994 Legal Action 18, the tenant was awarded £2090 per annum for a rat infestation with some other disrepair.  In Abbas v Iqbal, LAG 8/09, p.36, HHJ Redgrave (Bow CC) t awarded £2000 per annum for 6 years for cockroach and ant infestation, rent was £60 per week.  In McGuigan v Southwark LBC Housing Law Case Book Fourth Edition P11.46. The tenant suffered a severe ant infestation, especially in the kitchen. There were ants in food packets, clothes, sheets and towels. Southwark eradicated the ants after about one year. Cockroaches also began to appear and two years later an extremely serious infestation existed. Cockroaches in the fridge, the freezer and the oven, no food could be kept in the house. Furniture had cockroaches nesting in it. Cockroaches crawled out of the TV and telephone. Bedding had to be checked every day. Mrs. McGuigan used no heating for a period to try to deter the infestation, became profoundly suicidal. Abandoned possessions. General damages of between £1,000 and £3,500 per annum for the period were awarded, plus special damages, a total award of £28,650.

This paper draws heavily on “Repairs : Tenants Rights” 4th Edition LAG and “Cheshire Fifoot and Furmstons Law of Contract” 15th Edition Oxford Press

Deirdre Forster Powell Forster solicitors

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