Are residential landlords liable for the health of their tenants?

Property analysis: Timothy Waitt, partner at Anthony Gold, who recently represented a family in a successful private prosecution of Lambeth Council, explains the law around the condition of rented accommodation and the health of tenants. Analysis What were the key facts of your most recent case? The tenants flat was damp and mouldy. Her landlord said it was condensation. It was in fact a leak. The landlord was sued and paid compensation and did works. They did not solve the problem. The leak remaineda damp bathroom ceiling caused by repair issues in the flat above which the landlord did not address. The tenant brought a private prosecution under the Environmental Protection Act 1990, s 82 (EPA 1990) against the landlord to get repairs done quickly. The landlord pleaded guilty and was ordered to pay compensation of 500 and do repairs. They were fined 1,335 and ordered to pay costs. What obligations are landlords under in relation to the health of their tenants? The key point is that there is no general liability to repair or provide a habitable dwelling (Cavalier v Pope[1906] AC 428, [1904-7] All ER Rep Ext 1221). Thus a landlord (who is not the builder) absent of a contract or statutory provision has no obligation to repair and has no liability for personal injury to the tenant. The Defective Premises Act 1972, s 4 (DPA 1972) provides a duty of care on a landlord which covers issues which are within the landlords repair obligation and also matters the landlord has reserved the right to repair. Tenants rights to repair fall under the express terms and those implied by the Landlord and Tenant Act 1985, s 11 (LTA 1985). This covers: the structure the exterior installations for supply of heating installations for hot water the supply of gas, water and electricity (but not making use of the supply) Landlords are also under obligations regarding the fitness of their housingparticularly under the Housing Act 2004 (HA 2004). These obligations are triggered by inspection and notice from the local authority. Similar obligations exist under EPA 1990 and the tenant can bring a private prosecution.

Criminal Prosecution by a tenant to get repairs The EPA 1990, s 82 enables a person aggrieved by a statutory nuisances to prosecute. Statutory nuisance means premises which are prejudicial to health. For example:

condensation damp and mould infestation with pests potentially dangerous electrics inadequate heating It also covers common law nuisance, such as a leak from the flat above. Properties suffering from condensation dampness frequently suffer from black mould growth. Black mould is closely linked to a variety of health problemsincluding asthma which can be caused, and is often worsened, by exposure to the mould Responsibility for condensation damp and mould Generally condensation damp and mould are not repair issues and so there is no obligation for the landlord to carry out works. Condensation occurs due to an imbalance between moisture production, ventilation, heating and insulation. Properties suffering from condensation dampness frequently suffer from black mould growth. Some properties suffer severely from condensation due to design. A poorly insulated flat with underpowered heating is likely to suffer badly. Condensation damp leads to mould and the mould is closely linked to a variety of health problems including asthma. Of course, if the condensation is caused or made by worse by a repair issuefor example the heating has broken downthen the landlord will be liable. This will include decorations to eliminate the damp and mould. It will also include liability for resulting personal injury. However, if it is not caused or worsened by a repair issue, then the landlord will have no civil repairing obligation. They might just be caught by DPA 1972, s 4 but otherwise the remedy is a prosecution under EPA 1990. What are the difficulties in challenging a landlord on the grounds of health? There is no general liability to let a habitable home. Since not all problems in a home are the landlords contractual or tortuous responsibilityie the design caused condensation problemsthere is no civil remedy for some personal injury. In such cases the only remedy is via a prosecution under EPA 1990 and damages will be relatively low. All persons aggrieved can bring such a claim, including the children suffering asthma. Damages are limited to 5,000 in respect of each claim. What are the potential implications for landlords (both private and council) if they are found to have breached their obligations in respect of a tenants health? The same as anyone elsea claim for personal injury, repairs and compensation. In addition they could face a criminal prosecution. A private or social landlord, but not a local authority, could also be prosecuted by the local authorities environmental health department under EPA 1990 or under HA 2004 and the Housing Health & Safety Rating System (HHSRS). This will lead to a fine and potentially the landlord doing the repair work and charging the landlord. Ultimately they could take over management of the property. How does the criminal process work in this area? If a statutory nuisance or a category one or two HHSRS hazard exists (which covers damp and mould), a

local authority has an obligation to inspect. If they then conclude the statutory nuisance exists they must serve a notice. If the hazard exists at the appropriate level they must take some actions. This would most likely include serving a notice requiring remedy of the problems within a set time scale. A landlord can appeal the notice if they think there are grounds and should do so at once as breach of the notice is essentially a strict liability offence. The time limits for doing so are very short21 or 28 days depending on the notice. An EPA 1990 prosecution brought by a tenant is brought against the person responsible for the statutory nuisance unless the issue relates to defects of a structural nature which includes design, in which case it is the landlord who is prosecuted instead. A formal warning must be served giving 21-days notice of the intended prosecution. Information is then laid by the person aggrieved. The key landlord defence is to argue that the issues are not caused by defects of a structural nature but by the actions of the tenant. In condensation cases there are potential defences. Does the involvement of a property management agency complicate the matter? Not really. Anyone collecting rent can be prosecuted under the HHSRSso that would cover agents. An EPA 1990 prosecution can potentially be brought only against the person responsible the statutory nuisance, landlord or freeholder. In most cases that would not cover the agent, but it might do. What advice would you give to tenants who have concerns? The first step is to tell the landlord. If that does not work, and you have a private landlord, refer the issues to the councils environmental health department. Otherwise seek legal advice. These issues are not straightforward and so seek legal advice from solicitors specialist in housing issues. Legal aid is still available for advice, subject to eligibility. Specialist firms will consider conditional fee agreements, which are lawful to use to fund an EPA 1990 prosecution. What can landlords do to ensure they remain outside of the scope of criminal liability? The key steps for landlords are to: properly investigate complaints not simply dismiss problems as tenant-caused condensation where necessary, improve properties to meet HHSRS standards appeal any notices served if they have grounds Interviewed by Guy Skelton. The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.