The Environmental Protection Act 1990 provides a valuable resource to housing disrepair lawyers who are not put off by having to utilise the Magistrates Court.
The majority of claims for housing disrepair are brought using Section 11 of the Landlord and Tenant Act 1985. This requires that the structure, service media and conveniences of the property are kept in a good and functional condition. These must decline in their state of repair from the date the property is let to the date the issue is reported to the landlord. If they are in a poor condition on the date the lease is signed, there is no requirement for the landlord to improve them.
Where the Environmental Protection Act 1990 is different, is that it enables tenants, occupiers and or their neighbours to bring criminal proceedings due to premises being a risk to health regardless of the condition they were in on the date any tenancy began.
This means that properties that are poorly designed or have inherent defects are caught by the legislation. A tenant in a property blighted by mould caused by inadequate ventilation is unlikely to have a claim under Section 11 of the Landlord and Tenant Act 1985 as it is likely that the poor ventilation would be considered a design flaw and not disrepair. This is a common occurrence in older properties that were designed at a time when the specifics of modern usage could not reasonably have been foreseen.
Claims brought under the Environmental Protection Act 1990 and its predecessor, the Public Health Act 1936, are primarily claims brought as statutory nuisances. A bad property is actionable if:
• it is in a state of repair which is prejudicial to health or a nuisance;
• there is an accumulation or deposit which is prejudicial to health or a nuisance;
• there are insects coming from an industrial, trade or business premises that could be prejudicial to health or a nuisance;
• a well, tank, cistern or other such water carry facility used for the supply of water for domestic purposes is in a condition that renders the water liable to contamination prejudicial to health;
• a pond or other such watercourse is so foul it is prejudicial to health or a nuisance; or
• noise coming from the premises is such that it is prejudicial to health or a nuisance.
The legislation is intended to have a wide catchment. It is intended to cover all land and vessels in the public or private sector. The premises need not even be occupied as it is their condition and not the manner in which they are used that determines a breach.
The key matter to prove is not that there is a defect, which will normally be apparent, but that it is such that it poses either a nuisance or it could be prejudicial to health. However, the matters caught by the legislation are those that are public health matters that are or could be injurious or likely to cause injury to health.
If you are a tenant living in a property blighted by poor conditions that you believe could cause an injury to you or someone else, it is important to obtain clear advice from lawyers familiar with the Environmental Protection Act 1990.
Not all cases can lead to a successful prosecution, but if a civil claim under Section 11 of the Landlord and Tenant Act 1985 is unavailable, it is important to explore the other options available and so it is vital to instruct a lawyer who is familiar with them.
If you are a social housing tenant who is struggling with disrepair, we may be able to help. Call us on 01253 858231 or email us at info@mjvlaw.co.uk
We were instructed at the end of December 2021 by Mrs W from South London who had been experiencing ongoing disrepair within the leasehold flat that she shared with her young family since 2008. We took her case on under a ’No Win No Fee’ agreement.
In the winter of 2008, our client reported to the freeholder that she had noticed a wet patch on the ceiling of the main bedroom which became progressively worse with each rainfall. The ceiling very quickly became plagued by black mould which subsequently spread to the walls and ceilings in the second bedroom and bathroom.
The disrepair was reported to the freeholder by both telephone and email on a weekly basis for over thirteen years however the freeholder made no attempt to investigate or fix the source of the leak.
By the end of 2021 the black mould and damp was so bad that our client was unable to use the three rooms affected, numerous clothing and soft furnishings had been damaged beyond repair, her children were suffering from constant respiratory infections and the whole family was having to sleep in the living room.
As soon as we took instruction we sent a detailed letter of claim to the council setting out that they were in breach of express and implied terms of tenancy and/or breach of their statutory and common law duties by not adhering to the clauses outlined in the lease regarding the freeholders responsibility for the maintenance and repairs of the building.
The freeholders’ solicitors replied to our letter of claim and both parties instructed expert surveyors who undertook their own separate inspections on the property. The experts reported that some of the main issues were but not limited to an Ingress of rainwater in multiple locations from a defective drainage system causing severe damage to ceilings and walls throughout the property plus high levels of humidity, damp and toxic black mould.
The freeholders nominated experts report agreed with our surveyors findings therefore the other party made a part 36 offer to settle out of court, this offer was well below par as were all subsequent offers made at this time therefore, we rejected the offers on behalf of our client and issued court proceedings.
As the hearing date drew closer the other party’s solicitor contacted us with another part 36 offer to settle out of court. The offer that was put forward was still below par but included all repairs to be completed within 120 days. We rejected this offer and made a counteroffer of £10,000.00 in damages plus all repairs to be completed within a much shorter time frame. Our client accepted the offer.
Our client had up until the point of instruction lived with damp and toxic black mould for thirteen years which had caused herself and her young family both mental and physical distress and whilst getting her home back to a live able state was the priority the compensation that our client received came a close second.
For more information on how compensation is generally calculated, read our article on this subject: https://www.mjvlaw.co.uk/legal-news/housing-disrepair-compensation/
by Jane Willacey
We are often asked by clients how much compensation they will receive if their claim succeeds.
Unlike personal injury claims, where the Judicial College Guidelines serve as a guide, there is no such tool in housing disrepair claims.
General Damages / Compensation
General damages are more commonly referred to as compensation. They serve to compensate the tenant for the inconvenience, discomfort and distressed caused to them through their landlord’s breach of their repairing obligations.
The most commonly used method of assessing damages is as a reduction in the rental value of the property.
Take a property was comprised of 2 bedrooms, 1 bathroom, 1 living room and 1 kitchen. If it was let for £100 per week and the disrepair complained of materially affected 1 of the bedrooms, the bathroom and the living room, it would affect 50% of the rooms. Using a very simplistic approach, that would mean the compensation would be £50 per week, being half of the £100 per week rent.
This is paid for the period from when a reasonable landlord would have completed the repairs to the date the landlord of our client did so.
If, in this example, the landlord undertook the repairs 50 weeks after they should have, the tenant would receive compensation of £2,500.
Special Damages
Special damages can be considered your out of pocket expenses. You are entitled to recover any money that you have paid as a result of the problems for which your landlord was responsible.
There is no finite list of these, but you must be able to prove your loss and so receipts should always be kept.
Examples of Special Damages in Housing Disrepair Claims
Cleaning costs;
Loss of earnings (such as if you have had to take time off work to meet the landlord’s agents and they have not attended the appointment);
Additional heating costs or the costs of a dehumidifier when trying to dry out the property;
The cost of alternative accommodation if your property was uninhabitable for any time;
The cost of repair, cleaning and redecoration (provided these are costs incurred personally and the work was not undertaken at the landlord’s expense);
Travel costs;
Medical costs;
The cost of dining out (such as if food storage or cooking facilities have been damaged).
by Jane Willacey
Withholding Rent
Many of our clients ask us whether they are entitled to withhold rent if heir landlord fails to undertake repairs. Given that compensation is normally calculated as a reduction in rent, this may seem reasonable. However, you should not withhold rent and should continue to pay in full.
Tenancy Agreement
The tenancy agreement requires you to pay the rent on a certain date. If you do not, you risk being evicted. Whether the court would grant an eviction would depend on the amount of arrears. If it is more than 2 months’ or 8 weeks’ rent, the Court has no discretion to refuse the request.
The agreement also requires a landlord to comply with their repairing obligations. It may seem unfair that you need to pay the rent in full. However, compensation in a housing disrepair claim is intended to be compensation for paying more rent than you should have for a property in disrepair.
If you do not pay your full rent, you will accrue arrears. It may be that your tenancy agreement provides for your landlord being entitled to recover interest on those arrears meaning that you will pay even more rent than you otherwise would.
If your landlord takes legal action against you, they have a right to claim interest. Any Claimant in a County Court claim is. This is provided by Section 69 of the County Courts Act 1984. They are entitled to claim 8% of any monies owed as part of the claim.
If they do issue court proceedings, they are also entitled to recover their costs. If the claim is for less than £10,000 the costs will be limited to small claims costs of no more than £100. However, they are entitled to claim their court fees as well. These will be several hundreds of pounds. The exact amount will depend on the amount involved and whether a hearing is required.
While it is not certain that landlords would take such action, they may. They are entitled to do so and so it is not a risk we advise tenants to take.
Compensation
Even if your landlord does not evict or sue you, you would not receive the full amount of compensation if you were to withhold rent and subsequently settle your housing disrepair claim.
It is established that landlords can deduct the damages from the arrears due.
It is rare for a tenant to be awarded a 100% rent reduction as damages. Our experience suggests that the average is 20-40%. As such, if you withhold your full rent, it is possible that you would not receive any compensation and would remain in arrears after the claim settled. This would mean that the treat of eviction and or being sued would remain until you had paid the arrears.
Claims
If you are a tenant in a housing association or council property and your landlord has not completed repairs you have reported, we may be able to help.
Call us on 01253 858231 or e-mail info@mjvlaw.co.uk
