Disrepair or Damp

Debra Mo, Partner

How can practitioners ensure a successful outcome for claims of disrepair caused by damp? Debra Mo explains

The Court of Appeal case of Quick v Taff Ely BC [1968] QB 809 established that for the purposes of s 11 of the Landlord and Tenant Act 1985, ‘disrepair’ is physical deterioration to the structure or exterior of a premises. A landlord is not liable under repairing covenant simply because there is extensive and serious damp in a demised premises. A tenant must establish either that the damp arises from a breach of the covenant (ie physical damage to the structure or exterior of the premises) or that the damp has itself caused damage to the structure, and this in turn has caused the damp of which a complaint is made.

Two recent Court of Appeal cases of Ball v Plymouth City Council [2004] EWHC 134 (QB) and Southwark LBC v McIntosh (2001) 47 EG 145; (2002) 8 EG 164 are an important reminder that no matter how devastating dampness is in premises, its effects are not necessarily disrepair. This article explores how to avoid the relevant pitfalls.

Southwark LBC v McIntosh

This was a case fought by the tenant on the basis that the existence of damp constituted a breach of contract and a cause of action in itself, for which damages should be, and were awarded. The tenant had been complaining to the council about extensive damp throughout her flat for five years. The council had effectively done nothing. There was evidence that in the past water had leaked into various rooms, but there was no agreement by the experts on the causes of the water ingress. The council’s surveyor was of the opinion the dampness arose from condensation. The claimant’s expert was silent on the matter.

The judge found the claim based on damp persuasive. He accepted that the very fact there was dampness to the degree suffered by the tenant was enough for him to award the tenant £7000 damages. The principles in Quick were held inapplicable and the landlord’s counsel’s submissions wrong in law. HHJ Cox stated in his judgment that:

“... the real vice of the situation in this case is that for five years or so the local authority, despite vociferous complaints on the part of the claimant, made no real attempt to find the cause of or to remedy the dampness which, without any doubt whatsoever, afflicted the premises in which she lived”.

The Court of Appeal however, dismissed the claimant’s case, with the effect that she ended up with no damages. The court found that she had failed to establish that the landlord was responsible for the damp, so there was no entitlement to any damages.

Causation

The problem that led to the action being dismissed in McIntosh arose from the way the case was pleaded and proved. In cases where dampness arise, it is not sufficient to plead dampness without identifying its source or cause to a structural defect. In Lightman J’s view, the way the case had been pleaded in McIntosh:

“… had a lasting effect on the way the claimant’s case was viewed by the experts and presented to and determined by the judge. The tenant’s expert clearly proceeded on the same basis as the pleading, namely that it was only necessary to establish the damp. He did not point to any damage to the structure or exterior of the premises. He did not address the question of causation of the damp: He regarded it sufficient to refer to the ‘water leaks’”.

Items of disrepair that actually lead to the condition of the premises being damp must be specifically pleaded. If the pleadings are deficient in respect of stipulating what damage there is to the structure or exterior which caused the damp, McIntosh illustrates that an expert’s report cannot fill that lacuna.

Diagnosis

There must also be a proper diagnosis of damp by an expert to avoid the kind of problems encountered in McIntosh and the more recent case of Ball v Plymouth. In Mr and Mrs Ball’s case, the matter turned on expert evidence given by the parties’ expert witnesses. Plymouth Council claimed that the extensive damp that pervaded the tenant’s flat was due to condensation because of some inherent defect and/or poor ventilation. Various possible causes of dampness were considered during the course of the hearing. The judge found that the claim lacked clarity and specificity, and dismissed it.

On appeal, the judge’s decision was upheld. The appellate court considered the judge was entitled to reach his decision given the incomplete picture presented by the expert evidence. The claimant’s expert report was said to have contained a number of “bare and breezy” assertions. There was no evidence before the judge to persuade him that the burden of proof had been discharged. There had been no common ground between the experts as to the cause of the dampness. Neither of the experts were called for cross examination, so the differences remained unresolved.

The Court of Appeal decided that on the face of those limitations, the judge was entitled to find for the council, principally on the basis that he accepted their expert’s evidence that condensation was the cause of the dampness.

Expert evidence

There is an assumption that the expert must know best. Not spotting when your expert is not answering specific issues in a case may make or break the entirety of the case. In cases involving dampness, the contentious issue is often whether or not the dampness is caused by disrepair or condensation.

The effect of wet surfaces caused by damp penetration or condensation gives rise to the same kind of problems: formation of mould; wallpaper ‘bubbling’ and/or falling off; and fungal growth.

Dampness in premises is basically traceable to moisture that should not otherwise be present, except for a defect. Damp usually has its source in a structural problem – a leaking pipe or capillary action from the exterior owing to, say, defective brickwork.

Condensation however, occurs when something raises the moisture level within the premises. At a given temperature, air can only hold a certain amount of water vapour before becoming saturated. If the saturated air is cooled it cannot hold all the moisture as vapour, so the excess moisture is given up as condensation on a cooler surface. Four factors affecting the control of condensation are:

• heating;
• ventilation;
• thermal insulation; and
• moisture vapour generated within the premises.

This means that lifestyle within a dwelling can cause condensation, for example drying damp clothes on radiators; under-heating or using liquid based fuels; an overcrowded dwelling; or a tumble drier which is not connected to external air.

Your expert should be able to eliminate a building from a finding that it is damp because of some structural defect. Do not accept propositions or findings of dampness which do not locate a source. If there is no structural defect linking to the cause of damp, then consider with your expert whether it may be the way in which the premises are being occupied that may be the sole contributing factor, giving rise to condensation.

Whether a single joint expert is appointed or you have to go it alone and appoint your own to attend a joint inspection with say, a local authority landlord’s surveyor, choose your expert carefully. There are many experts who are under pressure to find solutions to building problems who become diverted from examining the use and occupation of a dwelling properly.

A key to establishing if the cause or source of dampness is being thoroughly investigated is to understand the methods and equipment available to your expert. A survey that relies solely on the result of an electrical moisture meter (known in the trade as a protimeter) to determine dampness problems has been proved to be unreliable. See Diagnosing Damp in Buildings by Mike Parrett and Ralph Burkinshaw, published by the Royal Institute of Chartered Building Surveyors.

Many surveyors will initially use a protimeter, but a protimeter alone can give false readings and may come into contact with a range of materials or substances. Condensation at the base of a wall can be mistaken for rising damp by the sole use of a protimeter. If there is a dispute over the source of dampness, the only satisfactory way of eliminating condensation from the equation is if other tests are undertaken. These tests entail more invasive measures, involving taking samples and testing them for hygroscopic salt. Soil water contains chlorides and nitrates (salts). Rising damp is soil water from the ground which has, by capillary action, risen vertically in a wall by failure or bridging of the existing damp proof course.

Condensation against an outside wall may give an appearance of rising damp as it predominantly occurs on the lower levels of the wall. Where there is an issue between experts over condensation or dampness, a calcium carbide test should be undertaken. Calcium carbide is a substance which totally absorbs moisture. Laboratory tests have to be undertaken and a sample of masonry taken. The expert will therefore need the freeholder’s permission to remove samples. Do not accept an expert’s report that merely states that they did not follow through with such a test where they suspect the problem may be more than condensation, but this is disputed. There is no other way of eliminating whether there are other factors causing damp that is not disrepair.