Court awards 100% of rent in damages to tenant whose property was unfit for human habitation
Introduction
By now, all landlords of properties in Wales should be aware of The Renting Homes (Fitness for Human Habitation) (Wales) Regulations 2022, which prescribe the 29 ‘matters and circumstances’ that must be considered when determining if a property is fit for human habitation, plus the requirements for carbon monoxide alarms, smoke alarms and electrical safety reports.
Since the Regs were introduced, landlords have been wondering what damages a judge might award if a property is deemed to be unfit for human habitation. Well, a recent court case – albeit an English one – may give us some indication, and it’s not good news for landlords.
When is a property unfit?
The Regulations say a property is unfit for human habitation if:
- It doesn’t have a working carbon monoxide alarm in each room containing a gas appliance, an oil-fired combustion appliance or a solid fuel burning combustion appliance. This includes rooms with gas boilers and/or gas cookers.
- It doesn’t have a mains-wired smoke alarm on each storey, interlinked with any other mains-wired smoke alarm.
- It doesn’t have a valid electrical condition report, or the report hasn’t been given to the contract-holder (the property is only fit once it has been given)
- Having considered the 29 prescribed ‘matters and circumstances’ – which include things like damp, mould and hazards – a court decides a property is unfit.
The case
Ms Dezitter, a tenant, brought a court claim against her landlord, Hammersmith and Fulham Homes (aka London Borough of Hammersmith and Fulham).
Ms Dezitter claimed:
- 14th June 2010 – 24th December 2013 (3.5 years): General disrepair, including cracks to the walls and ceilings, ill-fitting and drafty doors and windows, damp and mould, lights hanging from and watermarks to the ceiling and a boiler which frequently lost pressure.
- 24th December 2013 – 20th March 2020 (6-and-a-bit years): Enhanced disrepair as, in addition to the above, there was now a leak from the roof.
- 20th March 2020 – 7th November 2020 (7.5 months): The property was not fit for human habitation. 20th March 2020 was the day on which The Fitness for Human Habitation Act 2018 came in in England, hence why the claim the property was unfit began on this day and not earlier.
There was evidence Ms Dezitter had been complaining since moving in.
A claim for disrepair has a limitation period of 6 years, but a limitation defence must be entered in order for the judge to cap it. Remarkably, Hammersmith didn’t raise a limitation defence, so the court was able to consider the claim way back to 2010. Hammersmith didn’t file any witness evidence, didn’t attend trial and provided no explanation, so judgement was awarded.
How might the landlord have helped defend the case in court, or even prevented it getting to court?
- A system for logging all contract-holder reports (which may well highlight the lack of a report) is vital.
- A paper chain of responses and actions, may include instructions to occupiers and/or contractors, is also essential.
- Produce inspection reports with date and time-stamped photos. Inspections must be documented, retained for at least two years, and be conducted at least annually for single dwelling tenancies / at least every 6 months for HMO tenancies.
All the above are requirements of Rent Smart Wales (RSW) licensees. They go as far as saying that if a licensee cannot comply with them, they must appoint an agent who can.
The damages awarded
Next, the court had to decide how much in damages to award.
- For period 1, they decided 35% of the rent, rounded to £8k.
- For period 2, they decided 40% of the rent, rounded to £16.2k.
- For period 3 (where it was claimed the property was unfit for human habitation), they decided 100% of the rent: £24,786.
The interesting part here is period 3: that unfitness attracted 100% compensation. The judge’s logic being if a property is not fit for habitation, one does not enjoy it, one endures it. He felt either the house was fit and rent was payable, or it was not fit and in that case no rent was due.
Conclusion
Whilst only a county court judgement (and a case that wasn’t defended), it does show the danger of the concept of fitness for human habitation. If a property is not fit, this case would argue that no rent is payable. It’ll be very interesting to see what happens if a similar case reaches the higher courts. An appeal of this particular decision is unlikely.
This was an English case, but the requirement for properties to be fit for human habitation applies in Wales too, via the aforementioned Renting Homes (Fitness for Human Habitation) (Wales) Regulations 2022.
To check if your property is fit for human habitation, read our expert advice on the subject.
Why use CPS Homes?
- Our dedicated maintenance portal allows occupiers to easily report issues and upload photos or videos. Our team carefully assesses each situation to determine responsibility, keeping contract-holders in the loop. We may tell the contract-holder that they’re responsible for resolving the problem, offering advice and letting them know we’ve made a note to check it at the next inspection too. It might be the case that we contact the landlord for guidance, or go ahead with hiring a contractor to attend. We tailor our approach to each individual case, ensuring the most effective resolution.
- Our regular inspections are thorough and documented with detailed, time-stamped reports. We don’t just go through the motions; we carefully check the property's condition and look for any maintenance problems, even if the contract-holder hasn’t reported them. By catching potential issues early, we prevent them from becoming bigger problems.
- Maintenance issues aside, we also provide landlords with considered improvement advice to help maximise their rental income. Rent increases can and do regularly occur at tenancy renewal or when there’s a change in occupier.
If you need a hand with a specific situation, we're here to help. Get in touch with our team on 02920 668585 or email lettings@cpshomes.co.uk. You can also find out more about our managed services here.
The information contained within this article was correct at the date of publishing and is not guaranteed to remain correct in the present day.
