Following a 2-day trial in the case of Jillians v Red Kite Community Housing, County Court at Oxford, 24 September 2024 (unreported), HHJ Melissa Clarke considered the correct approach to determining fitness for human habitation in a claim pursuant to ss.9A and 10 of the Landlord and Tenant Act 1985 [“LTA”].
BACKGROUND
In 2021 Miss Jillians [“C”] commenced a disrepair claim against her social landlord, Red Kite [“D”]. C alleged that D was in breach of both its s.11 LTA repair obligations and the s.9A LTA obligation to keep the property fit for human habitation. The issues complained of by C included mould growth, water damage and damp to various rooms.
C had lived in the property - a three-bedroomed, semi-detached house - since 2001. Initially, C, and her 2 children, had lived there pursuant to a tenancy agreement with D’s predecessor in title. In 2013, by which time C had 8 children living with her, C entered into an assured tenancy with D. The tenancy agreement stipulated a maximum occupancy of 6, but C had annotated the agreement to state that she had 8 children living with her. The agreement was signed both by C and on behalf of D on the same page as C’s annotation. Subsequent correspondence confirmed that D was aware that more than 6 people lived at the property.
D put C to proof that the defects complained of were actionable, and that D was on notice of them. D further relied on the defence contained in s.11(2)(a) LTA, alleging that C had failed to occupy the property in a “tenant-like manner” due to both overcrowding and poor housekeeping. D counterclaimed for damages amounting to £3216.84, alleged to be owed by C for repairs, together with a small sum of rent arrears, which had been cleared by the conclusion of the trial.
THE LAW
The Judgment includes a useful summary of the current law on the landlord’s s.11(1)(a) LTA repair obligation, before turning to consider the fitness for habitation provisions of s.9A.
S.9A, which has applied to new tenancies since 20 March 2019 and to existing tenancies since 20 March 2020, implies a covenant into tenancy agreements that the landlord will keep the property fit for human habitation for the duration of the tenancy. S.10(1) sets out various matters to which the court should have regard when determining whether a property is unfit for human habitation. These include repair, freedom from damp, ventilation and “in relation to a dwelling in England, any prescribed hazard”.
For the purposes of S.10, “hazard” has the same definition as in s.2(1) of the Housing Act 2004, wherein “hazard” is defined as “any risk of harm to the health or safety” of an occupier arising from a deficiency in the dwelling or in any building or land in the vicinity. Schedule 1 of the Housing Health and Safety Rating System (England) Regulations includes a list of prescribed hazards which includes exposure to “damp, mould or fungal growths”.
S.10.(1) provides that a dwelling will only be regarded as unfit for human habitation if “it is so far defective in one or more of those matters that it is not reasonably suitable for occupation in that condition”.
The Judge took the view that Defective Premises Act 1972 [“DPA”] authorities could provide assistance in determining s.9A fitness for habitation. Bole v Huntsbuild Ltd [2009] EWCA Civ 1146 set out a number of principles to be applied when considering fitness for habitation - the first being that determining fitness was a matter of fact in each case. In Bole the Court of Appeal held that the correct approach to making such a determination was not to consider each individual defect and decide if it individually, or taken in conjunction with other defects, rendered the dwelling unfit, but to ask “whether the dwelling as whole was unfit for habitation”.
C relied on another DPA case, Rendlesham Estates v Barr [2014] EWHC 3968 (TCC); 1 WLR 3663, as authority for the proposition that mould and damp could render a dwelling unfit for habitation.
THE COURT’S FINDINGS
The Judge made findings as to whether each of the issues complained of were actionable defects or hazards, finding in favour of C on 8 out of 9 issues, and making no finding on the 9th issue. The Judge then found that D had failed to prove that any of these defects were attributable to C’s breach of her duty to occupy the property in a tenant-like matter either by overcrowding or due to housekeeping deficiencies. The Judge found that C had satisfied the court that D had been on notice of the defects and that, save for a single electric socket, D had failed to rectify the defects within a reasonable period.
Having made the above findings, it fell to the Judge to make a determination as to fitness for human habitation pursuant to s.9A. D argued that it was not open to the Judge to make such a finding without expert evidence as to whether the quantity and location of mould was in fact hazardous to health. However, the Judge was satisfied that “hazard” as defined by s.2 Housing Act 2004 was about “the risk of harm … not measurable and measured harms”. The Judge noted that, while a risk of disrepair was not actionable pursuant to s.11 LTA, it is a risk of harm which is actionable pursuant to s.9A.
In stepping back and considering the Property as a whole, the Judge was satisfied on the facts that it had not been fit for human habitation from early 2018 until February 2024 (by which time some remedial works had been undertaken) and that this constituted a breach of covenant from 20 March 2020 onwards (when s.9A applied to existing tenancies).
The Judge gave very short shrift to D’s Counterclaim for sums said to be owed by C. The learned Judge commented that one of D’s witnesses had “come perilously close to an admission that the Counterclaim was brought cynically and specifically to put pressure on [C] to drop her Claim”.
REMEDIES
Having found D liable pursuant to both s.9A and s.11, the Judge made an order for Specific Performance in relation to outstanding defects and an award for General Damages (for a sum to be determined following the handing down of judgment) for the distress, discomfort and inconvenience caused to C by D’s failings.
CONCLUSION
In determining whether a dwelling is unfit for human habitation pursuant to s.9A LTA it is necessary to step back and consider whether the dwelling as a whole is rendered unfit by defects or by hazards which present a risk of harm.
This case summary was composed by 25 Canada Square Chambers Member Charlotte Walker.