Is T obliged to report damp?

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    Is T obliged to report damp?

    Hi All,

    Come across this issue on another forum and thought someone here might be able to illuminate me.

    The basic question is --- is a tenant obliged to report problems with the property?

    For example, property had patch of damp on a wall, but T did not report it. Can LL sue or otherwise penalise T because the damp has now got worse?

    My argument is that the LL would have a problem proving that T noticed the problem --- and you surely can't sue someone for not reporting something that they didn't know about.

    Even if it can be proved that T noticed the damp, can it be proved that T knew it was a problem?

    Do any TA's have a clause stating that T must report problems to LL, and would such a clause be enforceable?

    Thanks

    Peter

    #2
    The tenant has a duty to look after the home; this includes reporting faults so that LL can fix it. It comes under 'acting in a tenant like manner' catagory during a judgement on repair by Lord Denning, and there is probably a clause in the ast?

    Pragmatically; the LL should support the tenant by asking them to report faults and alerting that if they dont they will be responsible for further damage.

    The LL has a duty to know the state of their home as they are liable for any accident or consequence of not keeping house in good repair even if they are not aware of the problem, under Defective Premesis act.
    All posts in good faith, but do not rely on them

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      #3
      Thanks Bel. But what can LL do about it if T has not reported a problem? Would LL not have to prove that T has noticed problem and has realised that it is a problem? And how could LL prove this?

      Peter

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        #4
        Some more thoughts

        Proof depends on the overall condition of the property; if it is not immaculate it is harder to tell what is wear and tear and what is damp, how obvious the damp is, and how long it has been there, if the tenant is visually/mentally impaired, was the damp there when he moved in ...

        You could also ask your insurers for advice.

        Your first step would be to negotiate with the tenant and see if they agree that they are responsible.

        If the tenant is otherwise reliable, this will upset the relationship. He may find fault with the LL on other matters etc.

        A judge might want to know why the LL had not inspected the premesis more frequently.
        All posts in good faith, but do not rely on them

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          #5
          It's not really anything to do with me. A person on another forum posted saying they were renting a property, had noticed a damp patch but had just painted over it (for some reason). They were worried that the LL would be able to penalise them in some way (deduct from deposit, probably) because they didn't report it.

          My initial thought was that it would be very hard for the LL to prove that the T had noticed the problem and realised it was a problem. After all, not everyone would recognise damp when they saw it --- tenant could just claim he thought it was something wrong with the paint, so he painted over it.

          Other people have argued that T may have had a contractual obligation to report "problems" to landlord. I'm not sure how such an obligation could be enforced and in any case, who defines what is or isn't a problem? Damp isn't really a problem to the T unless it gets really bad and starts affecting their health.

          I contend that T was stupid not to report the damp but can't reasonably be penalised for it.

          Peter

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            #6
            An example: If the damp is unreported and causes LL's antique plasterwork to drop off that otherwise would have been sound had tenant reported promptly, the tenant could theoretically be charged to have plasterwork replaced. There has to be a material loss for LL to feel agrieved.

            I believe there is a duty in law ('tenant like behaviour' and contractually in the AST) for T to report repair issues; T risks being sued for damages if he does not bother.
            You have a point that unless damage is serious, T might not be able to judge correctly as he is not a surveyor!
            All posts in good faith, but do not rely on them

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              #7
              Also, how can L fix it until T reports it? T is obliged to tell L; once notified, L is obliged to fix.
              Of course, not much turns on this if the damage is caused by an insured risk (eg storm, floods) or a neighbou's water percolating. Only if T's negligence exposes L to extra cost will the problem become acute.
              JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
              1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
              2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
              3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
              4. *- Contact info: click on my name (blue-highlight link).

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                #8
                Originally posted by Bel
                An example: If the damp is unreported and causes LL's antique plasterwork to drop off that otherwise would have been sound had tenant reported promptly, the tenant could theoretically be charged to have plasterwork replaced. There has to be a material loss for LL to feel agrieved.
                But would L not have to prove that T noticed problem and was aware that it might lead to plasterwork dropping off? How could L respond if T simply said "Sorry mate, I didn't notice that damp patch"?

                Surely T cannot reasonably be contractually obliged to notice all problems with property?

                Originally posted by jeffrey View Post
                Also, how can L fix it until T reports it? T is obliged to tell L; once notified, L is obliged to fix.
                It may be the case that T is obliged to tell and L is obliged to fix, but my question is what recourse does L have if T doesn't tell? How can L prove that T noticed problem?

                Has there ever been a successful case where a L has sued a T for not reporting a damp problem which has subsequently worsened?

                Only if T's negligence exposes L to extra cost will the problem become acute.
                I agree that L could penalise T if T's negligence has caused a problem. But I don't see how L could penalise T for not reporting a problem, as it would involve proving that T noticed problem and had the knowledge to realise it was a problem.

                Peter

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                  #9
                  Originally posted by pcwilkins View Post
                  But would L not have to prove that T noticed problem and was aware that it might lead to plasterwork dropping off? How could L respond if T simply said "Sorry mate, I didn't notice that damp patch"?

                  Surely T cannot reasonably be contractually obliged to notice all problems with property?



                  It may be the case that T is obliged to tell and L is obliged to fix, but my question is what recourse does L have if T doesn't tell? How can L prove that T noticed problem?

                  Has there ever been a successful case where a L has sued a T for not reporting a damp problem which has subsequently worsened?



                  I agree that L could penalise T if T's negligence has caused a problem. But I don't see how L could penalise T for not reporting a problem, as it would involve proving that T noticed problem and had the knowledge to realise it was a problem.

                  Peter
                  Yes. See:
                  O'Brien v. Robinson [1973, House of Lords]: L not in breach of repairing obligation if carries out work promptly once notified by T.
                  Minchburn Ltd. v. Peck [1988, Court of Appeal]: T's damages for discomfort reduced because T delayed in notifying L of defect requiring repair.
                  British Telecommunications plc v. Sun Life Assurance Society plc [1995, Court of Appeal]: open question whether covenant "to keep in repair" means something stricter than just "to repair".
                  JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
                  1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
                  2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
                  3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
                  4. *- Contact info: click on my name (blue-highlight link).

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                    #10
                    Thanks Jeffrey. The second case seems the most relevant but even that doesn't really address my question exactly --- in that case it seems that T was trying to claim against L because of disrepair, but L argued that T didn't tell L quickly enough and so T's case was weakened.

                    I wonder if a L has ever sued T because T did not tell L that the wall was going damp; so L did not know that wall was going damp; so L did not repair damp; so eventually house fell down (extreme example perhaps). Could L realistically expect T to cough up the price (or part of it) of erecting new house?

                    Peter

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                      #11
                      If the patch was obvious...then the T should have noticed it. Unless visually impaired.
                      All posts in good faith, but do not rely on them

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                        #12
                        Originally posted by Bel View Post
                        If the patch was obvious...then the T should have noticed it. Unless visually impaired.
                        But supposing T says he didn't notice it? Supposing he says he noticed it but didn't realise it was a problem?

                        L cannot prove that T really did notice it, no matter how obvious it it. What if T argues that he never went into that room or that he never looked at that wall? I know there are walls in my house that I don't really look at all that often!

                        I just don't see how it would work --- perhaps I'm being thick but it almost seems like you're implying that T has a contractual obligation to notice problems and to realise they are problems.

                        Unless you can enforce such a term it seems to me that any term which says "T must report problem to L" is worthless, because L cannot prove that T noticed the problem and T cannot be penalised for not telling L about a problem if T didn't know about it!

                        Peter

                        Comment


                          #13
                          The clause is not worthless.
                          If it's included, L has a chance to argue that T breached it; the outcome will depend on whose evidence is believed.
                          If it's not included, L is stuffed.
                          JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
                          1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
                          2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
                          3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
                          4. *- Contact info: click on my name (blue-highlight link).

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                            #14
                            We had this, tenant had a leak from her bath which she didn't notice, was leaking through to the downstairs living room. We inspected the property and there was a giant patch of green mould from the ceiling down the wall.

                            She hadn't reported this to us- could only get someone out the next day and the ceiling collapsed in the night.
                            Now whos fault is that? Damage could have been prevented if she had reported it earlier and cost us alot less???

                            Comment


                              #15
                              Originally posted by jeffrey View Post
                              The clause is not worthless.
                              If it's included, L has a chance to argue that T breached it; the outcome will depend on whose evidence is believed.
                              If it's not included, L is stuffed.
                              I see your point, but surely if agreement states "T will report all problems to L", surely that would only cover problems which T is aware of --- i.e. if there is a patch of damp in the loft and T never goes into the loft, L cannot reasonably expect to argue that T has breached clause.

                              We had this, tenant had a leak from her bath which she didn't notice, was leaking through to the downstairs living room. We inspected the property and there was a giant patch of green mould from the ceiling down the wall.

                              She hadn't reported this to us- could only get someone out the next day and the ceiling collapsed in the night.
                              Now whos fault is that? Damage could have been prevented if she had reported it earlier and cost us alot less???
                              This illustrates my point exactly. Of course in reality it could be argued that it was the T's fault that the ceiling collapsed, as if she had acted earlier the ceiling would not have collapsed. But then maybe it's not T's fault that bath leaked, perhaps whoever supplied or fitted the bath is responsible. Or maybe LL is responsible for not inspecting the property more regularly.

                              Apparently T did not notice the leak --- so surely she can't be held responsible for not reporting it.

                              Perhaps this kind of situation would be avoided if LL inspected property regularly. If T refused L entry then it could be agreed that T accepted responsibility for any problems. This would motivate T to keep an eye out for problems and report them promptly, and make T liable for not reporting them.

                              Peter
                              Last edited by pcwilkins; 09-08-2007, 12:29 PM.

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