Disrepair - Landlords’ duties - Repair covenants - Residential tenancies

Tanya Grand v Param Gill: CA (Civ Div) (Lord Justices Thomas, Lloyd, Rimer): 19 May 2011

The appellant tenant (T) appealed against a decision ordering the respondent, her landlord (L), to pay her a sum in damages for breaches of his repairing obligation relating to the flat that she rented from him.

T had rented the second-floor flat in a three-storey building from L under an assured shorthold tenancy.

L had a long leasehold interest in the flat but no interest in the remainder of the building.

T’s main complaint was of damp and mould on the walls throughout the flat, which was apparent shortly after she moved in and got worse over time.

After more than four years L undertook curative works.

The judge found that the primary cause of the damp and mould was the design and structure of the flat, which was not L’s responsibility, but that a factor contributing to the problem was the defective boiler, for which L was responsible.

The judge awarded damages on the basis that a 10% contribution to the damp and mould was made by the lack of adequate heating.

He held that full damages would have been £6,000, so L was ordered to pay £600 in that respect.

He was ordered to pay £4,650 in respect of his disrepair of the boiler.

T submitted that the judge had been wrong to find that only 10% of the cause of the damp and mould was L’s fault; the judge had been wrong to overlook that L was in breach of his obligations not only in relation to the heating problems but also in relation to the omission to repair damaged plaster.

T submitted that the decision in Irvine’s Estate v Moran [1992] 24 HLR 1 QBD was wrong in finding that plaster on internal walls did not form part of the structure of a dwelling-house.

Held: Assuming that the plasterwork damage identified by the expert was correctly characterised as damage to the ‘structure’ of the flat, then it was damage for which L was responsible under his repairing obligations under both the tenancy agreement and section 11(1) of the Landlord and Tenant Act 1985, Quick v Taff Ely BC [1986] QB 809 CA (Civ Div) considered.

However, L was liable to repair it only if it did form part of the structure of the flat.

The decision in Irvine's Estate v Moran provided a good working definition of ‘the structure... of the dwelling-house’, but it was wrong in holding that the plaster finish to an internal wall or ceiling was to be regarded as in the nature of a decorative finish rather than as forming part of the structure.

Plasterwork, including that applied to external walls, was ordinarily in the nature of a smooth constructional finish to walls and ceilings, to which the decoration could then be applied, rather than a decorative finish in itself.

Therefore it was part of the structure.

Accordingly, the wall and ceiling plaster in T’s flat formed part of its structure, for the repair of which L was responsible, Irvine's Estate v Moran and Marlborough Park Services Ltd v Rowe [2006] EWCA Civ 436, [2006] HLR 30 considered.

It followed that the judge should also have found that the disrepair of the damaged plasterwork meant that L was in that respect in breach of his repairing obligations and should have compensated T appropriately.

Therefore the judge should have awarded T full compensation for the plasterwork damage, and discounted compensation for the remainder of the damage to which the inadequate heating contributed.

The court assessed the plasterwork damage as representing £750 of the judge’s figure of £6,000, so the award would be 10% of £5,250, plus £750, in addition to the £4,650 for the boiler (see paragraphs 18, 20-22, 25-27 of judgment).

Appeal allowed.

John de Waal (pro bono) for the appellant; In person for the respondent.