Building pathology legal aspects: civil and criminal
In the eyes of the law
2 March 2017
In the first of two articles, Michael Parrett considers the legal aspects of building pathology
Previous articles in this series have looked at damp through the related subjects of building design, building failure and occupants’ lifestyles, but the issues surveyors face when diagnosing the causes of damp need to be seen in the legislative context as well. Such legislation is split into two areas: civil and criminal.
Civil actions for disrepair deal with the practical issues arising from a failure of the building’s structure, exterior or services. These are the landlord’s responsibility, or the freeholder’s in the case of a leasehold property.
Claims that a property is prejudicial to health or a statutory nuisance are criminal matters relating to its condition, where this affects or could compromise the health of occupiers or the public. If an issue is likely to be injurious or prejudicial to health, a landlord has to remedy the situation within 21 days of being notified. A nuisance, meanwhile, is deemed to affect the public outside the premises; noise nuisance cases are rare because of the difficulties in obtaining proof, but any that are brought must be abated within 3 days.
The Oxford English Dictionary defines the verb “repair” as “to restore (something damaged, faulty, or worn) to a good condition”; it defines “disrepair” as “the state of being broken or old and needing to be repaired”.
Section 11 of the Landlord and Tenant Act 1985 requires the landlord “to keep the structure and exterior of the property in good repair, including drains, gutters, and external pipes; to keep installations with a supply of water, gas, electricity and sanitation in good repair and proper working order; to keep installations for space heating and water heating in good repair and proper working order”. While this is the basic situation, specific repairing covenants in a leasehold agreement may, for example, contain full repairing obligations for the lessee.
The structural and exterior property elements listed in section 11 will usually be the landlord’s responsibility. However, some tenancy agreements may make a broken window the occupier’s responsibility even though this is part of a building’s structure and exterior.
For disrepair issues under section 11, in both social housing and the private rented sector, surveyors must fully understand the terms and conditions of a tenancy agreement.
Civil actions for disrepair, which are heard in the county court, are usually concerned with section 11 of the 1985 act, which is linked closely to the landlord’s duty of care under section 4 of the Defective Premises Act 1972. There is also the Latent Damage Act 1986 and the Limitation Act 1980, which puts time limits on claims.
Criminal actions, which are heard in the magistrates’ court, generally relate to damp and defects in buildings. Many pieces of legislation apply to buildings, including the Environmental Protection Act 1990, specifically sections 79 to 82, which deal with prejudicial to health and statutory nuisance claims.
These areas are very closely connected with the Housing Health and Safety Rating System, part of the Housing Act 2004 regime. This categorises hazards deemed to be prejudicial to health; dampness and mould are considered a category 1 severe hazard.
Aid is governed by the Legal Aid, Sentencing and Punishment of Offenders Act 2012. Until recently, a claimant could only obtain legal aid for civil actions on disrepair but not criminal claims for statutory nuisance. However, the Lord Chancellor’s office has reviewed claims under disrepair in relation to public funding certificates and legal aid.
Consequently, legal aid will only support claims of disrepair linked to “prejudicial to health” claims or where there are actual health issues. This demands that claimants have obtained medical evidence to support a link between their ill health and housing conditions before their claim is considered for public funding.
An example would be a plumbing leak in a tenanted property that caused dampness and mould. People contracting rhinitis and suffering breathing difficulties may demonstrate that their ill health was commensurate with these problems, as there is a well-documented causal link between dampness and mould and upper respiratory tract infections.
Where there is a long leasehold agreement, section 8 of the Limitation Act 1980 says there can be a 12-year limitation period for any claims, although in most disrepair claims for short secure tenancies, claimants would be statute barred after 6 years. Latent defects to a building heard under the Latent Damage Act 1986 would historically have a similar 6-year claim limit.
However, a seminal case is Pirelli General Cable Works v Oscar Faber & Partners  2 AC 1. Oscar Faber, the defendant engineers, had been engaged by the claimant to design a chimney for the Pirelli factory, which had specified a chimney lining constructed from lightweight concrete.
The work was completed in 1969 but cracks soon appeared at the top of the chimney. However, the claimants did not become aware of this until late 1977 and issued a claim against Oscar Faber in 1978. Initially, the claim was statute barred because 6 years had elapsed since the work. The case went to the House of Lords and the law lords overturned the statute limitation period. They said that if a defect were hidden or did not reveal itself for some considerable time after construction, the claim should start from the date of discovery rather than on completion of construction.
This case led to an amendment to section 14a of the Limitation Act 1980 on timescales relating to claims, effectively meaning that there is no time limit. But section 14b of the Limitation Act 1980 contains a clause with a long-stop of 15 years for some cases of negligence. However, section 32 of the same act states there is effectively no time limit in cases where fraud, concealment or mistake occurred.
Structure or decoration?
A contentious area inside habitable spaces is whether defective wall plaster is the landlord’s or tenant’s responsibility.
Plaster could be considered either as part of the structure or as decoration. My view is that the plaster is part of the building if it has become defective because of a fault with the structure. But supposing the resident removed 3 layers of well-adhered wallpaper and pulled some very old plaster off the wall? It probably could not be argued that the aged plaster is not part of the structure. If wall plaster and decorations were damaged by mould and dampness that were entirely due to the tenant’s use and occupation, then this should on the other hand be categorised as decoration, and therefore the tenant’s responsibility.
In a case where a solid floor has no damp-proof membrane or a wall has no damp-proof course, and there are no mitigating circumstances such as raised external ground levels nor is there dampness, then is this the landlord’s responsibility? I would argue that if this were how a property had been built under the regulations of the day, then the landlord could not be found guilty under section 11 because there would effectively be no failure.
Failure or obstruction by tenants (as claimants) to provide access for their landlord to repair or abate a nuisance is a defence in law, as determined in Carr v Hackney London Borough Council  28 HLR 747. Where landlords offer reasonable alternative accommodation to enable them to carry out more major works, or any of a kind that cannot be undertaken while the premises are occupied, and the offer is unreasonably refused, there is a defence for the landlord. The authority is Quigley v Liverpool Housing Trust  ECS 94.
Improvement to premises
In Birmingham City Council v Kelly  17 HLR 572, the Divisional Court found that design defects and a lack of insulation may count against the landlord, even though these related to improvements to the premises. So in making claims that properties are prejudicial to health, it may be insufficient for a landlord to rely on not being required to improve the premises, if a judge or magistrate finds that a damp and mould problem may recur without that improvement being made.
It is important, too, for landlords to prove any contributory cause to a defect, dampness or mould by the tenant’s use and occupation of the premises. This was the case in Pike v Sefton Metropolitan Borough Council  JHL D84 QBD, where the tenant had failed to adequately heat the premises.
The 2nd article of this pair will consider important cases and their impact on surveyors.
Michael Parrett is a building pathologist, chartered building surveyor and founder of Michael Parrett Associates. He is an Eminent Fellow of RICS and the lead author on the Building Pathology Damp section of isurv.