Landlord and tenant – Landlord’s repairing covenants – Section 11 of Landlord and Tenant Act 1985 – Damp and mould in flat caused by inadequate ventilation – Claim by appellant tenant for breach of respondent landlord’s repairing obligations – Whether damp resulting from inherent design of flat such that no actionable disrepair arising – Whether plasterwork forming part of structure of flat so that damage caused by damp constituting structural damage for which liability arising – Judge awarding only 10% damages against respondent – Appeal allowed
The appellant was the tenant of a top-floor flat let to her by the respondent landlord, originally on a 12-month assured shorthold tenancy granted in 2004 but, thereafter, continuing as an assured periodic tenancy. The respondent was the long leaseholder of the flat but held no interest in the other parts of the building. The appellant brought proceedings against the respondent for breaches of the landlord’s repairing obligations. One of her complaints concerned damp and mould throughout the flat, which had become apparent shortly after she moved in and had subsequently worsened; curative works were not carried out until 2009. The appellant also complained of the poor functioning of the boiler resulting in a lack of proper heating, which was not remedied until 2007, and a broken window, which was not fixed for a year.
The judge found that the damp was caused primarily by the design and structure of the flat, particularly its lack of ventilation, although it was aggravated by water ingress from the roof and guttering, which were not the respondent’s responsibility since they did not fall within his demise. He held, on the authority of Quick vTaff-Ely Borough Council [1985] 2 EGLR 50; (1985) 276 EG 452, that a landlord’s repairing obligation under section 11 of the Landlord and Tenant Act 1985 applied only where structural damage called for repair and that no actionable disrepair arose where severe condensation was caused by the inherent design of the property. He found that the damage to the internal plasterwork caused by damp was merely decorative and not structural. He concluded that the respondent’s liability for damp should be confined to 10%, to reflect the extent to which the lack of adequate heating and the broken window had contributed to the problem. Of a total award of £5,600 damages, £5,000 related to the boiler problem and the remaining £600 reflected damage caused by the damp.
On an appeal by the appellant, the central issue was whether the plasterwork could be regarded as part of the structure of the flat so that damage to it should be treated as structural damage giving rise to the landlord’s repairing obligation.
Held: The appeal was allowed.
The plaster finish to an internal wall or ceiling formed part of the “structure” of a dwelling-house for the purposes of the covenant implied by section 11(1) of the 1985 Act, rather than being merely decorative: Irvine v Moran [1991] 1 EGLR 261 not followed; Staves v Leeds City Council [1992) 2 EGLR 37; [1992] 29 EG 119 and Marlborough Park Services Ltd v Rowe [2006] EWCA Civ 436; [2006] 2 EGLR 27; [2006] 23 EG 166 considered. In the past, when lath-and-plaster ceiling and internal partition walls were more common, the plaster had played an essential role in creating and shaping the ceiling or partition wall, serving to give a dwelling-house its essential appearance and shape. Moreover, plasterwork generally, including that applied to external walls, was ordinarily in the nature of a smooth, constructional finish to which decoration could be applied, rather than a decorative finish in itself. The wall and ceiling plasterwork in the appellant’s flat was therefore properly to be regarded as part of the structure of that flat. The damage to the plasterwork was damage to the “structure” of the flat, for which the respondent was responsible under his repairing obligations by virtue of the tenancy agreement and section 11(1) of the 1985 Act.
The respondent had breached his repairing obligations in that respect and was liable to compensate the appellant appropriately. The full liability figure should not have been discounted by 90%. The correct award was: (i) full compensation for the plasterwork damage in the sum of £750; and (ii) discounted compensation of 10% for the remainder of the damage by damp to which the inadequate heating had contributed, which, assuming that this accounted for the remaining £5,250 of the judge’s full liability figure, would be £525. The total award for the damp was therefore £1,275, resulting in overall damages of £6,275.
John de Waal (acting pro bono) appeared for the appellant; the respondent appeared in person.
Sally Dobson, barrister
