We were instructed at the end of April 2022 by Mr H from North London who had been experiencing ongoing disrepair within his council owned flat since December 2017. We took his case on under a ’No Win No Fee’ agreement.
In the winter of 2017, our client noticed that mould was beginning to form on the walls and ceilings in the bedroom, bathroom and living room plus he was finding a large number of slugs within the property when the weather was cold and damp. Our client reported this to the council via phone and email a considerable number of times over a five-year period with no response from the council.
By the start of 2021 the damp and mould had become so bad that it had ruined all the soft furnishings within the property, carpets, bedding, and curtains to name just a few were saturated with damp and mould which had a negative impact on our clients physical and mental health.
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 and we instructed an expert surveyor to assess the disrepair.
The surveyor reported that some of the main issues were but not limited to severely blocked guttering and drainage pipes, inadequate ventilation and blown seals on all windows and doors.
Some weeks later we received an acknowledgement of the letter of claim from the councils’ solicitors however they were reluctant to enter in to negotiations to commence repairs and settle out of court, therefore we issued court proceedings.
As the hearing date drew nearer we received a part 36 offer to settle out of court. The offer was lower than our valuation therefore we made a counter offer which in turn was rejected.
The judge ruled that the council were in breach of express and implied terms of tenancy and/or breach of their statutory and common law duties and awarded our client £3850 in compensation with all repairs to be made within 90 days.
Our client up until the point of instruction had lived with damp, mould and a slug infestation for four years which had caused him considerable distress and frustration and whilst getting his home back to a liveable 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
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
by Jane Willacey
It may surprise you to hear this , but you do not need to instruct a solicitor to bring a housing disrepair claim. But, the court will hold you to the same standard they expect from a lawyer if you make the claim yourself.
We always advise potential clients to engage our services or those of other solicitors who specialise in bringing housing disrepair claims. We are aware of all the tactics, tricks and strategies that Landlords are likely to employ. Crucially, we are also aware of how to defeat them.
What do I need to know?
The process that you must follow is prescribed by the Pre-Action Protocol for Housing Disrepair Claims. It can be found here: https://www.justice.gov.uk/courts/procedure-rules/civil/protocol/prot_hou
If you fail to comply with the Protocol you face the prospect of making a successful claim, but failing to recover costs and expenses and so it is essential that you follow it closely.
What does the Protocol say?
If you are thinking of making a claim, we urge you to read and understand the document before you do anything. This article is intended to be a summary guide only and so should not be relied upon instead of reading the Protocol.
The main parts of the Protocol for you to understand are:
You must send a letter of claim. This must contain your details along with those of the property and the disrepair complained of. You must explain the history of the problem and include when you first reported it to your Landlord and how. The letter must nominate a suitably qualified surveyor to inspect the property and enclose a draft letter of instruction. You should also request sight of all documents you wish to see that you believe may support your claim, such as the repair log.
You must allow 20 working days from the deemed date of service of the letter of claim. The deemed date of service is the second working day after you sent the letter by first class post. If you send it on a Friday, the deemed date of service is the Tuesday. Do not forget to allow for any bank holidays when calculating the date the response is due.
Landlords typically respond to acknowledge the claim before providing requested documents and a response regarding the instruction of a surveyor. Usually, the response is one of the following:
They agree to the joint instruction of a single expert on behalf of both parties;
They do not agree to a joint instruction, but agree to a joint inspection;
They do not believe a third party surveyor should be instructed and, instead, feel that their own in-house surveyor should inspect the property;
They deny the claim and so do not believe any surveyor should be instructed; or
They fail to respond at all.
You are then required to arrange for the surveyor(s) to undertake an inspection of your property and provide an expert witness report. You must ensure that the report complies with the requirements of Part 35 of the Civil Procedure Rules, which can be found here: https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part35
You will, in most circumstances, need to pay for the surveyor’s report and the cost is likely to range from around £500 to £1,500 plus VAT. You can proceed without a report, but doing so is extremely risky and your claim would be likely to fail;
Once you are in receipt of the report, you should serve a copy on your landlord and allow them a reasonable time to consider it. They should respond to confirm whether they admit or deny the disrepair. It is common, if they make any admissions, for them to provide a Schedule of Works.
If you are satisfied with their response, you should seek to negotiate damages. If you are not, you may wish to issue court proceedings. These, like the surveyor’s reports, are expensive and you would need to pay these before you could proceed unless you are entitled to a fee remission. The court fees are here: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/728146/ex50a-eng.pdf Details on fee remissions are here: https://www.gov.uk/get-help-with-court-fees
Damages
We call compensation, damages. There are two types, general and special.
General Damages
General damages are those awarded for non-tangible things such as inconvenience or pain, suffering and loss of amenity. In housing disrepair claims, general damages are awarded for you having had to live in poor conditions for the period from when repairs should have been completed to when they were. They are normally calculated as percentage reduction in rent whether you pay the rent or receive benefits. The more significant the impact the disrepair has had on your home, the higher the percentage.
Special Damages
Special damages are your out of pocket expenses. In housing disrepair claims, they are normally things like:
The cost of decorating that would not have been required but for the disrepair;
Replacing property damaged because of the disrepair;
The cost of alternative accommodation;
The cost of prescriptions or pain killers due to illness or injury caused or contributed to by the disrepair; and
The cost of travel to any medical appointments or to attend your landlord’s property to complain.
So what does a lawyer do?
At MJV Solicitors, we believe we add value for our clients. We provide expertise, skill and experience that makes making a claim for housing disrepair much easier for you. We act on a no win no fee basis and the surveyor’s report and court fees are included so you have nothing to pay unless your claim succeeds. If you do win your claim, we take a success fee of no more than 25% including VAT from your general damages and you will also pay the cost of an after the event insurance policy. This policy covers your costs if you lose your case and so provides protection that is necessary. If you do lose, you pay nothing provided you comply with the terms and conditions. These are not onerous. If you cooperate with us and tell the truth, you will comply.
If you believe you may have a housing disrepair claim why not contact us to discuss how we can help take the stress out of it for you. Call 01253 858231 or e-mail info@mjvlaw.co.uk
by Jane Willacey
We were instructed at the end of April 2021 by Mrs O from South London who had been experiencing ongoing leaks, damp and mould within the leasehold flat she had shared with her husband and three children since 2019. We took her case on under a ’No Win No Fee’ agreement.
Our client and her family moved into their first floor flat in 2012 and in 2014 they purchased the leasehold. In early 2019 wet patches and mould started to appear on the walls and window frames in both the kitchen and the living room and soon after it quickly spread to the flooring and throughout other rooms. Our client checked with their downstairs neighbour who confirmed she was experiencing the same issues and together they looked over the exterior walls finding that two walls on one side of the building were very wet and covered with algae.
Our client tried multiple times to contact the council who owned the freehold of the building but she didn’t get a reply. Our client continuously called and emailed the freeholder over the next few months to no avail.
By the summer of 2019 the disrepair was getting progressively worse, our client was spending both time and money washing down and repainting walls, cleaning carpets and replacing soft furnishings that had become saturated with damp and mould. It was at this point that the freeholder sent a contractor to the property who cosmetically covered up the damage by painting over the offending mould on the walls and window frames however no repairs and no investigations into the root cause of the disrepair took place.
At the start of 2020 a particularly long spell of heavy rain caused a major leak in the bedroom, water had poured through the light fitting resulting in the electrics shorting out. Our client was living with no electricity supply to this room but the resulting emails and calls to the freeholder again were ignored.
By the early spring of 2021 our client and her family had lived in a state of disrepair for over two years which had really taken its toll and had a detrimental impact on the family. It was at this point that our client felt that they could no longer live in their property whilst it was in such a severe state of disrepair, their physical and mental health had been severely affected and to provide a better home for herself, her husband and their children they took the decision to rent a property paying a reduced rent through their church until the disrepair was rectified. Our client was now effectively paying for two properties putting a heavy strain on their financial situation.
The freeholder made no attempt over two years to adequately investigate or attempt to repair the external damage which was the root cause of the internal disrepair therefore once we took instruction we gathered evidence of the correspondence between our clients and the freeholder plus copies of the original lease and appointed an expert surveyor to assess the property and report his findings.
The surveyor reported that some of the main issues were an active leak from a soil pipe causing penetrating damp and mould in the kitchen and bathroom and an active leak coming from the above property, which resulted in numerous problems such as black mould, damp, moss growth, rotten panelling, spalled plaster, lifted flooring and warped doors and frames.
We sent a detailed letter of claim to the freeholder 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 leasehold regarding the freeholders responsibility for the maintenance and repairs of all common area water and waste pipes.
The other party’s solicitor acknowledged our letter of claim but didn’t contact us with a reply, however after chasing them for some weeks they did eventually instruct their own nominated surveyor to assess the property. The freeholder’s expert surveyors report agreed with ours therefore we made a settlement offer.
Our offer was rejected and liability was denied with the freeholder stating that our client “should claim on their insurance”. We argued that even if our client was able to claim on her insurance for damages the leaks would first need to be stopped and this was the freeholder’s obligation under the express and implied terms of tenancy.
All of our subsequent offers were rejected and the council continued to deny liability therefore we issued court proceedings. As the date of the court case grew closer the freeholders’ solicitors contacted us to let us know that they would now welcome an offer of settlement, we made an offer based on the monthly rent valuation of their property, the amount of time that had passed, the effect on the families physical and mental health and their excess outgoings for rent on their temporary property. Our offer was again rejected by the freeholder with their counteroffer being well below par and in turn rejected by us.
Fast forward to just two days before the trial date, the freeholders solicitors came back to us with a part 36 offer to settle out of court of £25,600 to cover damages and repairs with all their legal fees recovered from the other side. After discussing this offer with our client she accepted.
Our client’s had up until the point of instruction lived in a state of disrepair for over two years and whilst getting their home repaired and returned to a liveable state was of primary importance the compensation that they received helped immensely with getting their lives back on track.
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 MJV&Co
In claims for housing disrepair, the court does not have the power to order a landlord to move you to a new property. However, by instructing MJV Solicitors, as experts in housing disrepair, we are sometimes able to negotiate this.
Case Study
Our client was living in a property suffering from bad disrepair. The problems included:
Plaster falling away from the walls;
Cracks in the plaster on the walls and ceilings;
Mould and damp in all rooms;
Poorly maintained external brickwork;
A broken toilet; and
Broken bathroom tiles
Our client had been reporting the problems for over six months when she reached out to us for help. We were able to help her on a no win no fee basis.
The Property
The disrepair was so bad, that our client’s landlord needed to move her and her family out of their home while repairs were undertaken. She did not want this and wanted to move out for good.
It is not possible for a court to order this. All it can do is order the landlord to conform with the lease and to do the repairs required. However, we approached her landlord and asked that they compensate her and move her to another property for good.
Following some negotiations, we were able to agree that her landlord move her to a new property she was happy with. She also received a payment of compensation. She had no out of pocket expenses and her landlord paid all the costs of her moving.
Can I move?
Not all landlords will agree. It is important to make sure that an offer to move is made in a certain way and so should only be made through expert housing disrepair lawyers such as MJV Solicitors.
If you wish to talk to us about a no win no fee claim for housing disrepair against a housing association or a council, call us on 01253 858231 or e-mail info@mjvlaw.co.uk
by MJV&Co
Our client approached us because she had been complaining to her landlord for around six months.
Her home suffered from various problems:
The plaster in many rooms was cracked and falling away from the walls;
There were cracks around several windows;
Some of the windows had failed and the seals had degraded causing drafts and leaks;
There were issues with mould, damp and condensation;
The toilet was broken; and
There were cracked and damaged tiles in the kitchen.
Landlord’s Failure
As is often so, her landlord inspected her property but did nothing else. They made promises that they did not keep and did not undertake any repairs as they should have.
Our Involvement
Our client grew frustrated at the conditions she was living in and instructed us to help her. We did so on a no win no fee basis as we do with all the housing disrepair clients whose claims we accept.
We presented the claim to her landlord and started the process as soon as she had completed her paperwork.
Sadly, her landlord ignored us as well. We instructed one of the country’s leading housing disrepair surveyors who inspected the property and produced a report. This confirmed that there was substantial disrepair that was the landlord’s responsibility. Once they received the report, they initially denied any wrong doing, but using our expertise and experience, we were able to prove them wrong.
Settlement
We were able to negotiate an agreement that our client was happy with. She was well compensated and now lives in a home free from damp, falling plaster and other disrepair that no tenant should have to endure
Your Claim
If you recognise any of the problems discussed in this housing disrepair case study and are the tenant in a council or housing association property, call us today on 01253 858231 or e-mail info@mjvlaw.co.uk for your no obligation consultation.
We offer a no win no fee service and are experts in our field.
by MJV&Co
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.
Any landlord of a property that they let to tenants is under a duty to ensure that the property is in a suitable state of repair.
If you are living in a rented property that has not been adequately maintained by your landlord, it could be that you have a claim for housing disrepair. However, it is not as simple as to say that because a property is in poor condition you will have a claim for compensation.
Section 11 of the Landlord and Tenant Act 1985 provides for certain circumstances when a landlord has a duty to repair a property and, when they do not do so, damages (commonly known as compensation) can be recovered for the tenant.
Section 11 of the Landlord and Tenant Act 1985
Section 11 of the Landlord and Tenant Act 1985 (LTA85) sets out a Landlord’s obligations to repair a property that is let out to a tenant by way of a short lease.
It states that there is an implied term in any relevant short lease that a landlord must keep a property in an adequate state of repair in terms of the structure and exterior including any and all drains, gutters and external pipes.
The LTA85 further requires them to keep all of the “installations” in the property that supply water, gas, electricity and sanitation items (such as the toilets) in a good, working condition. Specific reference is given to this applying to basins, sinks, baths and “sanitary conveniences”, but not other fixtures and fittings that use gas, water or electricity. As such, it is not a requirement for a landlord to ensure that a washing machine, dishwasher or cooker are working.
Finally, part C of Section 11 sets out the requirement for a landlord to ensure that they keep the heating installations for both space heating and heating water in a state of repair and in proper working order.
The acceptable quality of the repair work undertaken by the landlord will depend upon various things, but consideration will be given to the age of the property, its character and the prospective life of the property. It would also include consideration of the local area. So, a property in a high rise block of flats in a city centre would not require the same standard of work as a large, detached residence in a rural village.
The obligation to repair is binding on landlords even if they include provisions in the lease to try and avoid it.
Section 11, however, also makes clear what is expected of the tenant. The landlord’s obligations to keep the gas, water, electricity and sewage installations in a state of repair does not mean that they have to repair any damage done to them by a tenant. If these items do not work as a consequence of the tenant misusing or deliberately or recklessly damaging them, the landlord has no duty to repair that damage.
It also does not extend to imposing a requirement on the landlord to rebuild or reinstate the property in the event that it is destroyed or damaged by fire, flood or other such inevitable accident or “Act of God”.
A tenant is also required to ensure that they keep in a good state of repair and well maintained any items that they are entitled to remove from the rented property. For example, if a property was unfurnished and a tenant installed their own washing machine, that tenant would have to ensure that it was kept in a good working order. If that washing machine then leaked and caused damage to the property it would be the responsibility of the tenant and not the landlord to pay for the repairs.
Short Leases
The repairing obligations under Section 11 of the LTA85 apply to short term leases.
A short-term lease is defined by 13(1) as any lease granted on or after 24 October 1961 for a dwelling house with a term of fewer than seven years.
If a lease has a term of fewer than seven years, but contains an option to renew, which, if exercised, would extent the lease beyond seven years then it is not considered a short term lease and Section 11 would not apply.
The vast majority of rented properties in England and Wales are rented out under the terms of assured shorthold tenancy agreements of six or twelve months. Such agreements would be include the covenants implied by Section 11 and so most tenants of rented properties in England and Wales have the protection that it affords.
Reporting the Issue
It is, of course, a requirement for the tenant to make the landlord aware of the problem.
It is true that, under Section 11 LTA85, any short lease to which the landlord’s repairing obligation applies also contains an implied term that allows the landlord to enter the property for the purposes of viewing the condition and state of repair, provided always that 24 hours’ notice is given, and the inspection takes place at a reasonable time of day. However, if a landlord does not exercise this right and inspect the property, it is essential for the tenant to make them aware of any problems.
In the case of Samuel Edwards v Balasas Kumarasamy [2015] EWCA Civ 20, it was stated that “the general rule is that a covenant to keep premises in repair obliges the covenantor to keep them in repair at all times, so that there is a breach of the obligation immediately after a defect occurs. There is an exception where the obligation is the landlord’s and the defect occurs in the demised premises themselves, in which case he is in breach of his obligation only when he has information about the existence of the defect such as would put a reasonable landlord on inquiry as to whether the works of repair are needed and he has failed to carry out the necessary works with reasonable expedition thereafter”.
So, if there is an issue with a property, the duty to repair it falls on a landlord as soon as they are notified of it by a tenant.
Any landlord who wishes to keep to his obligations would arrange an inspection within a reasonable time, normally a few days, and arrange the works to be carried out as soon as practicably possible thereafter.
If the issue is one that manifests itself inside the property and the landlord carries out an inspection, the landlord is considered to have learned of it at the inspection.
If, however, he is notified of it by the tenant, he is considered to have learned of it when the tenant told him.
Any tenant should ensure that they notify the landlord of any issues and be sure to do so in writing. Leaving a paper trail and evidence of the notification of the disrepair could prove to be crucial evidence in the event that a claim arises.
If you are living in a rented property and have an issue for which the landlord is required to undertake a repair and you have not yet informed the, you should do so immediately and in writing. If you have already informed the landlord, you should keep a written record of how and when you notified them of the issue and each time you have had to chase them to act.
The burden of proof is on a tenant to prove that the landlord had notice of a defect and so giving that notice by written means ensures that proving notice was given will be much easier.
While it is possible for a landlord to receive notice by visiting the property at an inspection, it is not enough for them to have visited alone. The defect must have been visible and clear to see from such an inspection for the landlord or his agent to be considered to have been informed of it. The defect must have been visible and obvious at the time.
Where a defect is visible from outside of the property, there is no requirement for a tenant to give the landlord notice of it, but it is always best practice to do so.
The Requirement to Repair
Section 11 sets out the requirement for a landlord to keep certain services and parts of a property in a state of repair. The LTA85 itself does not define what “in repair” means and so this has been left to the courts to determine using common law.
In the matter of Uddin & Anor v Islington London Borough Council (2015), a tenant resided in a property that suffered from rising damp. The Council had previously inserted a damp proof course into the property and so they tried to argue that they had taken the steps that were required to keep the property in a state of repair. The court disagreed and found in favour of the Claimants.
The damp was caused by an inherent defect in the property and the Council had taken steps to try and solve the problem, but as these efforts failed, the court found them in breach of their repairing obligation under Section 11 LTA85. The Claimants were awarded damages of £14,680.
Ackner LJ, speaking in the judgment of the Court of Appeal stated, “I have no hesitation in rejecting the submission that the appellants’ (the Council’s) obligation was repetitively to carry out futile work instead of doing the job properly once and for all”.
So a Landlord has a duty to ensure that a property let to a tenant is in a state of repair even if it was not when it was first let to the tenant.
It is a requirement of Section 11 of the LTA85 that some part of the structure or exterior of the property is in a state of disrepair. So, the covenants only apply when there is physical damage to either the structure or exterior and they do not apply if the damage has been caused by the tenant or their failure to act.
If a property has an issue, such as damp, a landlord is not automatically liable and required to repair it. In each case the tenant must show the damp has arisen from a landlord’s failure to maintain the property and keep it in good repair, which has caused physical damage to the exterior or structure of the property. The tenant must then show that it is this failure to maintain that has caused the issue complained of.
The structure of a property has been defined by the courts as consisting of the elements of a house that give it its essential appearance and shape. The case of Tanya Grand v Param Gill (2011) concerned whether the interior plaster of a property was part of its structure and the court determined that it was as it represented a material or significant element of the overall construction.
While plaster is considered to be a part of the structure, the décor of a property would not be as it is for decorative purposes only and does not contribute to the overall structure of a property.
For this reason, it is absolutely vital that a tenant who believes they have a claim under Section 11 seeks expert legal advice and the assistance of a suitably qualified and experienced surveyor. It will not be enough for a tenant to show that their property has an issue such as damp. They will need to prove to a court that the damp has been caused by a landlord’s failure to keep the items listed in Section 11 of the LTA 85 in a good state of repair and maintenance.
If defects are caused because of the age and type of a property then this would not amount to a disrepair and a tenant would not have a claim against a landlord.
When a landlord does have an obligation to repair, he must ensure that the repairs are carried out within a reasonable time after he has received a valid notice of the need for them. Reasonable will be determined by the extent and nature of the repairs that are necessary. If the repairs constitute an emergency then the time that the landlord will have could be quite short.
Good Working Order
Section 11 of LTA85 sets out that the pipes, cables and other such media that carry gas, water and electric to a property must be kept in a state of repair and must be working. As such, they must be designed and installed in a way that means that they are capable of carrying out the job for which they have been installed.
If they are installed and working well in all conditions that are reasonably foreseeable then the landlord will have complied with their obligations. However, if they have been installed in a way that causes them to fail, for example, in the case of icy or cold weather, then, as such weather is reasonably foreseeable in the United Kingdom, then they would not be considered adequate and it would be the responsibility of the landlord to have the issues rectified.
Personal Injury
In the event that a landlord has been properly notified of an issue and is required under the terms of the LTA85 to rectify that issue, but does not, a tenant who is named on a lease would be able to pursue a claim against the landlord for personal injury should that issue cause physical harm to them.
It is most likely in such cases that the issue will be one related to or causing damp and that this will.
Advice
If you are the tenant in a property and you have concerns about its condition then, as has been demonstrated above, it is essential for you to obtain specialist advice to assess whether you have a claim against your landlord.
It will be essential to obtain the report of a surveyor who is familiar with the LTA85 and other such legislation to enable them to properly assess your situation and the facts of it.
For specialist advice, call us today on 01253 858231 or e-mail info@mjvlaw.co.uk.
by MJV&Co
In the last few months, our commercial law Solicitors at MJV & Co Solicitors have been advising an increased number of companies on the need for a shareholders agreement.
Partnerships almost always have such agreements setting out what happens when one partner retires or passes away, if there is a disagreement, if the business is to close and so on.
However, the shareholders in limited companies tend not to have shareholders agreements, which deal with the same eventualities. If you or someone you know is a shareholder in a small business, you should ask them what would happen to their shares in the business if they passed away? Would their next of kin be able to contribute to the business? Is this fair on the other shareholders or would it be better for the company to purchase insurance, which our colleagues at Rawcliffe & Co Chartered Accountants tell us is normally tax deductible, that would buy out the deceased shareholder leaving the others to continue to run the business and the next of kin with a fair settlement.
These are all the sorts of thing that can be dealt with in a shareholders agreement.
Shareholders agreements are not as expensive as you may think. At MJV & Co we start with a precedent that deals with the main clauses and fill in the blanks based on the wishes of our clients. Things can be added or removed, but starting with a model shareholders agreement saves time and money. For most people, the agreement needs very little changing and the cost of an agreed and executed shareholders agreement can be as little as £500 plus VAT.
If you would like to know more or for a free initial appointment, call us today on 01253 858231 or e-mail info@mjvlaw.co.uk
by MJV&Co
Many of our small business clients have benefited from taking advantage of our free employment contract review service.
If you have a standard form contract and fewer than 20 employees we will review your contracts and policies without charge and provide you with our opinion n what, if any, changes to the contracts and any accompanying policies we recommend. If you decide to proceed based on our advice, we will provide you with a fixed quote to undertake the work and we will never bill you more than that for the work.
Lots of firms make monthly payment to Human Resources companies, but if you were to assess the true cost of this for your business, you will probably find that you are overpaying and would be better served having an employment law solicitor acting for you.
For more information call us today on 01253 858 231 or e-mail info@mjvlaw.co.uk
