Wednesday, 02 December 2015

The dangers of damp

Jennine Morally is a Lambeth Council tenant. When she moved in during 2009, her flat was damp and mouldy. She told the council, but it denied responsibility and said it was condensation.

A year later the damp and mould was worse, so Ms Morally sued the council. The ‘condensation’ was in fact a leak through the bathroom ceiling from the flat above, also owned and managed by Lambeth. In 2012, Ms Morally was paid compensation and repairs were carried out.

Unfortunately, by this stage the tenant’s five-year-old son had developed asthma. A personal injury claim was started on his behalf, which is still ongoing.

No improvement
Fast forward another year to 2013 and the bathroom was still damp - not dripping, just damp - and redecorations were ruined. Expert inspection of the flat above showed that the tiling around the bath was falling off the walls and causing the leak into Ms Morally’s flat.

A way to get fast repairs and some compensation is to bring a prosecution under section 82 of the Environmental Protection Act 1990.

The Environmental Protection Act
The act covers ‘statutory nuisances’, which means premises which are ‘prejudicial to health’, such as being damp and mouldy, infested with pests or with potentially dangerous electrics or inadequate heating. The act also covers common law nuisance, such as a leak from the flat above. Ms Morally gave 21 days’ formal warning of the prosecution to the council. Lambeth replastered and repainted the bathroom ceiling, but did not bother to fix the leak. Criminal proceedings were started on 3 July.

The only defence for these cases is that the problem is not the landlords’ responsibility. In court on 2 August, the judge awarded Ms Morally £500 compensation, which only covers the time since service of the warning notice. Given that the problem was a damp bathroom ceiling - no mould and no dripping at this time - it was an excellent award. Repairs are awaited.

The court can increase compensation and reduce any fine due to the landlord at its discretion. Indeed we asked the court to do so in this case. The judge clearly decided that extra compensation could not be justified but the fine was increased ‘for punitive effect’. The fine of £1,335 shows how seriously the court viewed the offence. The maximum fine is £5,000.

Lessons to be learned

  • Don’t just dismiss damp and mould as condensation. It might be a costly mistake as Lambeth found in this case.
  • Ignoring condensation, damp and mould and blaming the problem on the tenant may not solve the problem; it may come back and bite landlords with a criminal conviction.
  • Get proper advice at an early stage - the cause may be the tenant’s behaviour, but it might be something more serious.

Timothy Waitt, partner, Anthony Gold Solicitors

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