Proving the cause of damp
The Claimant brought a claim for specific performance and damages for breach of the local authority landlord’s repairing obligations. The Claimant lived in a 2 bedroom ground floor flat with her three children.
The premises had suffered from damp and condensation due to a combination of factors including historic penetrating dampness from the external wall into the internal bathroom wall causing damp plaster, hydroscopic dampness to the bathroom walls which was exacerbated by general bathing, water spillage, condensation, construction methods and lack of thermal qualities.
Over the years the council had made various attempts to remedy the mould growth including installing UVPC window reveals and installing dry lining. However, the mould growth always returned. The Claimant applied for a transfer with view to moving to damp free accommodation. The Defendant agreed to place the Claimant in the highest priority band within their choice based lettings scheme.
Whilst it was not in dispute that the premises were in a serious state of disrepair, it was very difficult to distinguish the damp from the condensation and identify the extent to which one was exacerbating the other. It was unlikely that the Defendant would be found liable for all of the dampness. At trial the Claimant conceded that the majority of the damp caused in the premises was due to condensation. The defects that the council were responsible for were limited to the damp plaster mainly in the bathroom and also damp to the external wall of the front elevation. The Defendant maintained that they were not responsible for ANY of the dampness at the premises.
Calcium carbide testing had been carried out to the core of the bathroom wall. The results were that the external wall was damp, the corresponding internal plaster was damp, but the core of the wall in between was dry. The Defendant argued that the tests confirmed that the damp plaster to the bathroom could not have been caused by penetrating dampness and therefore must be due to either condensation or the way in which the bathroom was being used. The Claimant was unable to identify the cause of the damp plaster in the bathroom but argued that the Defendant was still responsible for plaster defects whatever their cause because the plaster was found to be in disrepair and the plaster formed part of the structure of the premises for which the landlord was responsible for keeping in repair. The Claimant relied on the Court of Appeal authority of Grand v Gill [2011] EWCA Civ 554 for this principal.
The single joint expert described the walls of the bathroom as being saturated. The Defendant argued that wet plaster was not disrepair and relied on the case of Post Office Properties v Aquarius Ltd [1987] 1 All ER 1055 CA and contended that although the plaster may be wet there is no disrepair in that it was of same standard that it would have been before. The court found that if the plaster was saturated this must mean that it is not of same standard as when built. The court accepted this argument and said that in regard to the damage to the plaster, given the moisture level and given the consistency with the expert’s explanation, even though the core of the wall was dry, the court found that there was disrepair. The judge commented that it could not be said that the level of humidity or moisture retention, whatever the cause, it has not reached a stage of being in disrepair.
An award of 20% of the rental value was made for most of the period of the claim which was reduced to 10% for the period after the council had carried out some of the works which had improved the conditions at the premises but had not eradicated the damp and mould completely.