Fitness for human habitation claims – what are they worth?
Landlords should ensure that they are acting reasonably and promptly upon receipt of complaints relating to housing disrepair.
Section 9A of the Landlord and Tenant Act 1985 (“LTA 1985”) imposes an implied term into qualifying tenancies requiring landlords to ensure that their tenants’ properties are fit for human habitation at the outset of the tenancy and throughout. A property will be deemed unfit if it is out of repair, in one or more qualifying ways, to such an extent that it is not reasonably suitable for occupation in that condition. Breach permits the tenant to bring a fitness claim against the landlord, which can include a claim for damages and costs.
Fitness claims, (or rather unfitness claims), are on the rise, and with them we are starting to see a pattern of first instance decisions where extremely high percentage reductions in rent for the period of unfitness are being awarded. Although not binding, they do start to show a trend and may be an indicator of the court’s general approach to damages in proven fitness claims.
In the recent case of Engmann v The London Borough of Lambeth (Wandsworth County Court, 17 April 2024), a judge exercised their discretion in awarding damages equivalent to a 90% reduction in rent for the period in which it was considered that a property was unfit for human habitation.
Background
The claimant was the secure tenant of a property owned by the London Borough of Lambeth (“LBL”). In or around February 2023 the claimant commenced a housing conditions claim against LBL due to allegations of damp and mould, a leak, and faulty electrics within he property.
The findings of damp and mould were found to have been as a result of issues to the external brickwork, pointing and chimney, as well as failed damp proof courses. As a result of these issues, further disrepair occurred within the property including a leak, collapsed ceiling, and faulty electrics for a period of 8 weeks. The matter was settled by way of a consent order, which included provision for the claimant to be placed into decant accommodation and for works to be completed to repair the issues identified within a set period of time.
Unfortunately, the works were not completed within the agreed timescales and the claim was reinstated due to alleged breach of terms of settlement. LBL did not file a defence and the claimant was successful in their application for default judgment.
During the disposal hearing, LBL argued that the delay in completion of works had been as a result of the claimant’s refusal of a proposed decant. There was also a dispute between the parties relating to the period in which the property was considered to be unfit for human habitation.
The judge found that there were two distinct periods of disrepair. The first being the period prior to the leak taking place and the second following the damage caused by the leak, including the loss of electricity for a period of 8 weeks. The judge awarded damages reflective of a 30% reduction in rent for the period prior to the leak occurring, and made the decision that following the leak the property was likely to have been considered unfit for human habitation pursuant to Section 9A of the LTA 1985.
When considering the award for damages during the period that the property was considered unfit for human habitation, the judge took into consideration the cases of Dezitter v Hammersmith & Fulham Homes and Mason v Olivera and Santana. In both of those cases, the court awarded 100% of the rental value in damages for the period in which the homes were considered to be unfit for human habitation.
With regard to this case, the judge acknowledged that the above-mentioned cases were not binding, however, used his discretion to make an award reflective of a 90% reduction in rent for the period following the leak at the property.
Comment
The findings in the case of Engmann v The London Borough of Lambeth demonstrate a new approach being adopted by the courts in respect of housing disrepair claims where there is an element of a property being considered unfit for human habitation. Landlords should therefore ensure that they are acting reasonably and promptly upon receipt of complaints relating to housing disrepair and addressing any defects identified as quickly as possible, or face the risk of very costly litigation being pursued by their tenants.
For guidance on dealing with fitness claims, please get in touch with our social housing team.