Laying new foundations for housing disrepair cases

In the case of Dezitter v Hammersmith & Fulham Homes (Central London County Court, 7 November 2023), the court considered the appropriate level of damages to award when a property was deemed unfit for human habitation under the homes (Fitness for Human Habitation) Act 2018.

While the decision in this case is non-binding, this was the first case since the enactment of the Homes (Fitness for Human Habitation) Act 2018 to test how the courts will assess general damages in cases involving fitness for human habitation.

Homes (Fitness for Human Habitation) Act 2018

The Homes (Fitness for Human Habitation) Act 2018 amended the provisions of the Landlord and Tenant Act 1985 placing an obligation on landlords of residential accommodation to keep a property in a state that is suitable for human habitation.

The Act came into force on March 20, 2020 and applies retrospectively to all residential tenancy agreements.

How are damages valued in housing disrepair claims?

Compensation in housing conditions claims is determined based on inconvenience caused by the disrepair and the loss of enjoyment of the property.

There are three main methods of calculating damages:

1. Global award for inconvenience and discomfort caused by the disrepair
2. A notional reduction in rent
3. A combination of the global award and notional reduction methods.

The most used method adopted by the courts is the notional reduction method, whereby the court will award a percentage of the rent paid for the period that a property is found to be in disrepair. The percentage of rent awarded depends on the severity of the disrepair, typically ranging from 10% to 40%.

The facts of the case

Ms Dezitter, the claimant, had been a secure tenant of Hammersmith & Fulham Homes since May 2010. In 2023 she brought a claim for disrepair, citing disrepair issues she had complained about since moving into the property. The disrepair included cracks to the walls and ceilings, ill-fitting and draughty doors and windows, damp and mould, watermarks to the ceiling, lights hanging from the ceiling and a frequently loss pressure to the boiler.

There was evidence of Ms Dezitter complaining about the disrepair from the start of her tenancy. As Hammersmith & Fulham Homes had not raised a limitation defence, the entire period from the start of the tenancy was open to consideration from the court.

In considering the case, DDJ Harris submitted that damages should be awarded based on a percentage rent deduction and found that the disrepair fell into three periods:

1. June 14, 2010 to December 24, 2013: The date from when Ms. Dezitter had been complaining about the disrepair until the date when the condition of the property deteriorated further due to a water leak from the roof. For this period, DDJ Harris considered a percentage deduction of 35% of the rent appropriate. This amounted to £8,000.
2. December 24, 2013 to March 20, 2020: The date from when the roof leaked until the date when the Homes (Fitness for Human Habitation) Act 2018 came into force. For this period, DDJ Harris considered an appropriate level of damages to be 40% of the rent for that period. This amounted to £16,200.
3. March 20, 2020 to November 7, 2023: the date from which the Homes (Fitness for Human Habitation) Act 2018 came into for all tenancies. DDJ Harris considered an appropriate level of damages to be 100% of the rent paid for that period as the property was found to be unfit for human habitation. This amounted to £24,786.82.

A total of £48,786.32 was awarded for general damages, plus a 10% uplift in line with Simmons v Castle, resulting in a total of £53.664.95. There was also an award of £1,000 for special damages, along with an order for the repair works to be completed within 70 days, plus an order for Hammersmith & Fulham Homes to pay Ms Dezitter’s legal costs.

In arriving at this decision, DDJ Harris considered that either a property was fit for human habitation, or it was not, and where it was not, the tenant cannot be said to have derived any value from the tenancy during that period.

The impact of the case

Although the decision in this case is not binding and does not set a precedent for other courts, it could significantly impact the amount of damages awarded to tenants in future cases where a property is unfit for human habitation. The decision in this case opens the door to tenants being able to recover 100% of the rent paid during the period that a property has been unfit for human habitation, which was not an option previously.

The impact of this case can already be seen, as there have since been a further two county court decisions which have considered an appropriate level of damages in matters of fitness for human habitation.

In the case of Mason v (1) Olivera and (2) Santana, 100% of the rent was awarded in damages for the period that the property was found to be unfit for human habitation.

In the case of E v The London Borough of Lambeth (Wandsworth County Court, April 17, 2024), DDJ Daley awarded damages of 90% of the rent paid for the period that the property was found to be unfit for human habitation. In this case, DDJ Daley commented that the previous two cases were not binding and simply indicated that the court may award damages equivalent to 100%of the rent where a property is unfit for human habitation.

The decision in these cases show that courts are likely to award a high level of damages, of up to 100% of the rent paid, where it is found that a property is unfit for human habitation, therefore allowing tenants to recover significantly higher damages than before.

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