Landlord and tenant – Repairing obligations – Section 11 of Landlord and Tenant Act 1985 – Respondents taking tenancy of maisonette – Property suffering from problems with damp – Damages awarded against appellant landlords for breach of repairing covenants – Whether damp caused by defective damp-proof course for which appellants liable – Appeal dismissed
The respondents were the joint weekly tenants of a four-bedroom maisonette, arranged over the basement and ground floor of a Victorian villa, under a tenancy granted by the appellant council. The terms of the tenancy included the covenants implied by section 11 of the Landlord and Tenant Act 1985, which required the appellants to keep in repair the structure and exterior of the dwelling-house, including drains, gutters and external pipes.
Shortly after they moved into the property in October 2004, the respondents began to complain about damp. They brought proceedings against the appellants for damages, alleging breaches of the repairing covenants in the lease. The judge found that the problems were caused by rising damp. On the evidence of written reports from surveyors, who were not called to give evidence in person, the judge found that there had been previous remedial measures to deal with the damp, including the installation of a damp-proof course and replacement of internal wall plaster with waterproof cement-based render, but that the quality of workmanship was poor. He allowed the claim and awarded £14,680 in damages.
The appellants appealed. They contended that the judge had erred in finding, on the evidence of the written surveyors’ reports that the damp was caused by failed remedial measures in the form of a defective damp-proof course. They contended that the rising damp was caused by an inherent defect in the property, which fell outside the landlord’s repairing obligation since the remedy would involve making the property wholly different to that which was originally demised.
Held: The appeal was dismissed.
(1) Since there had been no order of the court excluding the surveyors’ reports from evidence, and the appellants had not given written notice objecting to their admissibility, the reports were admissible at the hearing as evidence of their contents pursuant to para 27.2 of Practice Direction 32. The judge was therefore entitled to rely on the reports as evidence of the facts contained in them.
(2) If there was a damp-proof course, then it was part of the structure of the dwelling-house and consequently the appellants were liable to keep it in repair. The surveyors’ reports found evidence of a post-Victorian method of damp treatment which had not worked, otherwise the flat would not have been damp. On the basis of that material, the judge was entitled to find that there had been a deterioration in the structure of the dwelling for which the appellants were responsible and which had caused damp. Whether that was the original Victorian damp-proof course or a later replacement did not matter for that purpose. The appellants’ arguments in relation to the cause of the damp were misconceived. The mere fact that damp was caused by an inherent defect did not of itself absolve the landlord from liability: Elmcroft Developments Ltd v Tankersley-Sawyer [1984] 1 EGLR 47 applied.
(3) Although the respondents’ particulars of claim had not pleaded a defective damp-proof course, they did allege that the maisonette was badly affected by rising damp. Moreover, the surveyors’ reports referred to previous ineffective remedial measures and a supplementary skeleton argument prepared by counsel for the respondents on the second day of the trial had contained an explicit allegation that there had been no effective damp-proof course. In those circumstances, the point was before the judge. Had the appellants been in any doubt about the case they were preparing to meet, they could have made a request for further information, but they had not done so. There was no suggestion that were taken by surprise or that there was additional evidence which they would have wished to call if they had appreciated that the question of a defective damp-proof course was in issue. The decision was not unjust because of a serious procedural irregularity within the meaning of CPR 52.11(3)(b).
(4) Similarly, no injustice had resulted from changes made to the draft judgment to alter the date from which damages should be awarded. Until judgment was handed down and an order made, a judge had the power to change his mind. The usual question was whether the judge was justified in doing so in all the circumstances of the case. In their comments on the draft, both parties had been able to make submissions on the correct date from which damages should run. If, as in the instant case, the judge was persuaded by short submissions that he had made a mistake, then the right thing to do was to correct the draft.
Sonia Rai (instructed by Devonshires Solicitors) appeared for the appellant; Nicholas NIicol (instructed by Hopkin Murray Beskine) appeared for the respondents.
Sally Dobson, barrister
Read a transcript of Uddin and another v Islington London Borough Council here
