Grand -v- Gill [2011] Court of Appeal
We have a Court of Appeal decision on disrepair! As pointed out by Nearly Legal in his report, this is as rare as hens teeth.
I won’t go into the facts of the case in any detail as these can be found in the excellent reports on the Nearly Legal and Pain Smith blogs, and the BAILII report is here.
The case relates to a number of disrepair issues in a second floor flat in Hillingdon, occupied by Ms Grand and her daughter. The extensive damp and condensation was so bad that the Ms Grand’s daughter was unable to sleep in the second bedroom.
The problem
The damage was caused largely by a leaking roof and defective guttering, and it was accepted that the landlord was not responsible for this – the head landlord was.
The condensation was mostly caused by a design fault and again it is accepted that landlords are not responsible for damage caused by design faults under their statutory repairing covenants (as set out in section 11 of the Landlord and Tenant Act 1985).
In the Court of Appeal
However on the appeal it was pointed out that there were a couple of areas of damaged plaster. This was actually caused by the leaky roof, for which Mr Gill was not resposible. However, argued Ms Grand’s Counsel, the damage was still structural damage for which he is liable under section 11.
Whether landlords are liable for maintaining plasterwork in rented buildings has been a vexed question for years. Is it part of the ‘struture’ which the act says landlords are responsible for keeping in proper repair, or is it merely decoration?
In this case Counsel for Ms Grand successfully argued that the plasterwork DID form part of the structure of the property, and therefore her award was increased to take account of this.
How it affects you
So if there is a problem with the plasterwork in your rented property, you can now be sure that this is considered part of the structure of the property and your landlord is liable for its repair.
The landlord cannot fob you off by saying that it is merely decorative and therefore (in the absence of anything in the tenancy agreement to the contrary) down to you.
An ill informed reply of mine but interested in any views.
I just stood by the Thai Noodle caravan in the high street discussing this case with Jeff, one of our environmental health bods.
We were discussing it with reference to the old Section 189/190 breaches of the Housing Act 1988, which said that a repair wasnt enforceable unless something had gone wrong. for instance, no damp proof course installed wouldnt come under 189/190, but a damp proof course built in but was malfunctioning would be covered.
Plus, under the ludicrously titled Housing Health and Safety Rating System, EH would always look for action where damp, as in the Grand v. Gill case, was a public health problem…..or am I getting the wrong end of the stick?
Ben, I think you are both getting your statutes muddled up. Probably too much chili sauce.
Section 11 of the Landlord & Tenant Act 1985 imposes various repairing obligations on landlords. This is entirely separate from the LA jurisdiction under the Housing Act 2004 (and formerly the fitness test under the Housing Act 1985).
The one is a contractual obligation. The other falls under the criminal law and is enforced by the LAs. But you knew that anyway!
HAHA yeah chili will do that to a man. The ladies who run the stall stock a particuarly lethal brand.
Problem is I need to get my head around disrepair stuff now. I am mainly a landlord tenant law bod. 2 years ago we got dumped with mortgage work, without any training. I am on top of that now but recently we were told we have to do disrepair too.
The trouble for me is not in the legal bit but the practical. If I was looking at a damp wall I have no idea what I am supposed to be looking at.
Ben, as a part time chilli head I doubt it’s that lethal compared to the stuff I regularly ingest!!!!
One thing I find with disrepair is trying to work out what the pictures I ask the clients to bring in are of. It’s hard to tell what’s condensation dampness and what’s penetrating dampness just by looking. Which makes me think that most housing officers don’t know either and just claim everything’s condensation dampness to try and avoid having to do repairs because that might mean they have to do some actual work (shock horror!)
… which goes to prove that Landlords should have adequate insurance, regularly update and repair their property, using professional work-men. If only …