Local authority letting property – Property suffering from condensation and damp – Whether local authority in breach of covenant “to maintain dwelling in good condition” – Judge awarding tenant damages – Appeal dismissed
By a written agreement dated 7 August 1990, and with effect from 13 August 1990, the defendant council granted the claimant and her husband a secure tenancy of a ground-floor flat at 100 Barnfield Gardens, Plumstead Garden, Greenwich. Clause 2.1 of the tenancy agreement stated: “The Council hereby agrees: To maintain the dwelling in good condition and repair, except for such items of repair which are the responsibility of the tenant”. Clause 3.2 stated: “The tenant hereby agrees: To carry out those minor repairs which are the tenant’s responsibility and to keep the dwelling clean, in good condition and to prevent damage”. The flat had three external walls and did not have thermal insulation.
In 1993 the husband left and the claimant became the sole tenant until she was rehoused in 1994. Throughout the four years of her tenancy, the flat had suffered from damp and condensation as a result of a lack of proper insulation. This had caused severe black spot and mould growth around the windows, on the walls, on soft furnishing and under the carpets. The claimant issued proceedings against the council seeking damages. The judge concluded that, in the circumstances, the uninsulated character of the claimant’s flat and the consequence of excessive condensation constituted the “condition” of the dwelling for the purposes of clause 2.1. On that basis, the judge concluded that the council had been in breach of their covenant to keep the flat in “good condition”, and awarded the claimant £9,000 damages.
The council appealed, contending that the obligation to “maintain in good condition and repair” required only that the existing physical elements of the dwelling were kept in good condition and repair. It was submitted that as it was common ground that the structure of the building had not been damaged by the condensation, the judge had erred in concluding that the council had been in breach of the covenant contained in clause 2.1.
Held: The appeal was dismissed.
The tenancy agreement had been in a very short and simple form. This was suitable since the council were letting the property as providers of social housing, and it was unlikely that the tenant would have taken legal advice. Accordingly, the agreement was to be given the meaning that an ordinary person in the street would give to it. The reference to “good condition” in clause 2.1 was intended to mark a separate concept, and was a significant addition to the word “repair”. “Good condition” did not mean only general structural care. Severe black spot and mould growth could not be recognised merely as matters of amenity dissociated from the physical condition of the flat, even though they had caused no damage to the structure of the building. Accordingly, the judge was right to conclude that, by failing to provide thermal insulation and allowing excessive condensation and severe black spot to continue, the council had been in breach of their obligations: Norwich Union Life Insurance Society v British Railways Board [1987] 2 EGLR 137 and Credit Suisse v Beegas Nominees Ltd [1994] 1 EGLR 76 considered.
Simon Berry QC and Bradley Say (instructed by the solicitor to Greenwich London Borough Council) appeared for the appellants; Stephen Knafler (instructed by Powell & Co) appeared for the respondent.
Thomas Elliott, barrister
