Fitness for human habitation: quantum and notice

Thomas Stockton examines two recent cases from the County Courts which look at quantum and notice in respect of the Homes (Fitness for Human Habitation) Act 2018.

Whilst the decisions are non-binding, each are of interest when consider fitness for human habitation.

Dezitter v Hammersmith and Fulham Homes (Central London County Court, 7 November 2023)

The tenant, Ms Dezitter, brought a claim against her landlord for disrepair and a breach of the Homes (Fitness for Human Habitation) Act 2018.

The tenant alleged that she had been complaining of disrepair since she moved in the property in 2010.

The landlord did not file any witness evidence or attend the trial, without explanation. The defence was struck out and judgement was given in favour of the defendant.

It was notable that the defendant did not raise any defence regarding limitation, which meant that the whole period from commencement of the tenancy was up for consideration.

The issue for the Judge to consider was quantum which were assessed as follows:

• Period 1 – rent reduction of 35% from tenancy start date until 24 December 2013 when the condition of the property further deteriorated as a result of the roof leak
• Period 2 – rent reduction of 40% from 24 December 2013 until 20 March 2020 when the Homes (Fitness for Human Habitation) Act 2018 was implied to the tenancy
• Period 3 – rent reduction of 100% from when the property was found to be unfit for human habitation

General damages of £48,786.32 were awarded, plus a 10% uplift in line with Simmons v Castle, providing a total of £53,664.95.  There was also an award for special damages of £1,000, an order requiring the works to be done in 70 days plus costs.

Summary

This case is a persuasive non-binding, yet it shows there is a clear argument that when a property is been found to be unfit for human habitation, damages may be as high as 100% of the rent as no value can be derived from a property which is not fit for a human to live in.

Dalton v Forhousing Ltd (Manchester County Court, 19 June 2023)

The tenant, Ms Dalton, was an assured tenant of the Claimant and brought a claim for disrepair and a breach of the Home (Fitness for Human Habitation) Act 2018.

The tenant’s case was that on 2 January 2020 she reported a leak above one of the bedrooms. The Defendant states that a repair was undertaken the following day however, the Claimant disputes this. Further to this, the Claimant says that in May 2020, she reported a further leak; this was denied by the Defendant. There were further allegations of the Claimant reporting dampness, which the Defendant denies receiving. Thereafter there were failed accesses for the works.

Both parties instructed experts to provide a joint schedule which concluded that the main issues in the property related to mould in the kitchen and bedroom.

The case went to trial and the judge dismissed the claim on the basis the evidence of notice was lacking and that there was no ongoing water penetration, according to the expert evidence.

Here is an interesting extract from the judgement:

"I found Mr O’Neil’s comments, under cross-examination, on the sections 9A and 10 issues to be illuminating and significant in my assessment of him as an expert witness. Section 9A, of course, contains an implied covenant on the part of the landlord to keep the property in a condition that is fit for human habitation, and section 10 identifies the factors to which regard must be had in determining whether a house is, indeed, fit for human habitation. That includes freedom from damp.

Section eight of the inspection report refers to the works which need to be carried out, and he says:

“I consider that the extent of the works required at your property means that the property will remain habitable. As a result, alternative accommodation will not be required”.

That is at page 87 of the bundle. He goes on, “It is my opinion that the tenant will not require decanting”.

He seemed to accept, on cross-examination, that it remained habitable but not in relation to sections 9A and 10; that the tenant simply did not need to decant. He then said it was habitable, but it was a question of whether it was suitable for occupation. He seemed to say that under the Act, it was a question of whether it was ‘reasonably suitable for occupation’ and he did not consider it was suitable for occupation.

However, then he went on to say that it could be ‘unsuitable for occupation’ but that did not render it uninhabitable. His confusion was worrying. His apparent justification that the tenant simply did not need to decant while the works were being undertaken was wholly unconvincing.

I found his evidence on this point betrayed a lack of understanding of the Act and fatally undermined his credibility. It also fatally undermined any claim under section 9A or section 10, on the balance of probabilities, that the property had been rendered unfit or uninhabitable with regard to the mould."

Summary

Ultimately, the decision of whether a property is fit or unfit for human habitation is made by the court and this claim was dismissed due to lack of notice and the poor pleading of the case.

However, the comments above demonstrate the importance of expert evidence and raise the question; if a property is unfit for human habitation, then why is there not a recommendation for a decant?

Thomas Stockton is a Senior Associate Solicitor at MSB Solicitors.