Adrian Newborough

Fosters SolicitorsWilliam House, 19 Bank Plain, Norwich, Norfolk, NR2 4FS

Will I be Liable for the Health of my Tenantand

In Case my Health Fails Should I Make a Will

In 2011 we became Norwich City

Football Club’s official legal

partner

NCFC Official Legal Partner

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The tenant’s 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.

Case Study

The leak remained - a 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 the repairs done quickly

The landlord pleaded guilty and was ordered to pay compensation of £500 and do the repairs. They were fined £1,335 and ordered to pay costs.

Landlords Liability for the Health of their Tenants

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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.

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).

The Defective Premises Act 1972, s 4 (DPA 1972) provides a duty of care on a landlord which covers issues which are within the landlord’s repair obligation and also matters the landlord has reserved the right to repair.

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Tenant’s Right to Require a Landlord to Repair Arise:

Under the express terms

Those implied by the Landlord and Tenant Act 1985, s 11 (LTA 1985). This covers:

1. The structure2. The exterior3. Installations for supply of heating4. Installations for hot water5. The supply of gas, water and electricity (but not making use of the supply)

Landlords are also under obligations regarding the fitness of their housing - particularly 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.

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Criminal Prosecution by a Tenant to get Repairs

The EPA 1990, s 82 enables a person aggrieved by ‘statutory nuisances’ to prosecute. Statutory nuisance means premises which are ‘prejudicial to health’. For example:

1. Condensation, damp and mould2. Infestation with pests3. Potentially dangerous electrics4. Inadequate heating

It also covers common law nuisance, such as a leak from the flat above.

Properties suffering from condensation and dampness frequently suffer from black mould growth. Black mould is closely linked to a variety of health problems – including asthma which can be caused, and is often worsened, by exposure to the mould.

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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 and dampness frequently suffer from black mould growth.

Some properties suffer severely from condensation due to design. A poorly insulated flat with under-powered heating is likely to suffer badly. Condensation and damp leads to mould, and the mould is closely linked to a variety of health problems including asthma.

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Of course, if the condensation is caused or made by worse by a repair issue - for example the heating has broken down - then 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 be caught by DPA 1972, s 4 but there is potential exposure to a prosecution under EPA 1990.

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What are the Potential Implications for Landlords if they have Breached their Obligations in respect

of a Tenant’s Health?The same as anyone else - a claim for personal injury, repairs and compensation. In addition they could face a criminal prosecution.

Case Study (Happened in Norwich)

A private or social landlord, but not a local authority, could be prosecuted by the local authority’s 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 tenant doing the repair work and charging the landlord. Ultimately they could take over management of the property.

Dangerous appliance which was not tested, caused fire and caused serious injuries to tenant with long term health care issues. Claim settled for substantial sum.

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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 short - 21 or 28 days depending on the notice.

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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.

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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

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DO I REALLY NEED A WILL OR I MADE A WILL 20 YEARS AGO SO I DON’T NEED TO DO ANOTHER

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The journalist writing the article reported:

“The first thing my solicitor tells me is that making a will does not mean I am about to die. The next is that I filled out my preliminary form incorrectly, accidentally cutting out my entire family.”

With regard to a DIY pro forma Will:

"One I saw only had room for one witness signature - it has to be two. Another client I had wanted to leave all his golf clubs to his best friend, but his best friend was the witness - which means that was invalid - he could never get his golf clubs."

“Only three in 10 people in the UK have a Will. Last year the Treasury gained £53m from people who died intestate - without a Will. The year before it was £76m. And yet the fractured nature of modern families and an increasingly litigious society means making a will has never been so important.” Source BBC News November 2011

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Shakespeare's will says of wife Anne Hathaway: "I gyve unto my wiefe my second best bed with the furniture"

And When you Make a Will don’t Think you can just Leave it to Anyone Without Proper Consideration

But if he made it today it, Anne would be able to bring a claim against his estate for reasonable provision under the Inheritance (Provision for Family and Dependents) Act 1975, and maybe get the best bed.

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All very noble but would this stand the test of capacity and did he comprehend and appreciate the claims to which he ought to give effect?

Portuguese aristocrat Luis Carlos de Noronha Cabral da Camara made 70 strangers picked from a phone book his sole beneficiaries

Actor Peter Sellers left his three children £800 each, with the bulk of his £5m fortune going to his estranged fourth wife. It is believed he tried to change his will on the day he died.

The lesson is even if you have a Will, make sure you review it as time, children and wives move on.

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And of Course There is the Matter of Tax

Loring v Woodland Trust 2013

The testator was able to use the transferable Nil Rate Band inherited from her husband with the result the residue left to charity increased from £30,805 to £355,805 thanks to the careful drafting of her Will. It is likely to have cost less than £300 to have the will drawn, and enabled her estate to give an additional £325,000 to her chosen charity.

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When you are dead you may have tweeted your last, but what about your legacy of digital life assets?

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People need to leave clear instructions outlining how they want their digital assets, including social media, music and computer games, dealt with after their death, according to the Law Society. The absence of a digital legacy could mean important or sentimental material, such as photographs on social network sites, is never recovered following the death of the account owner.

Digital assets include music, films, email accounts, computer game characters and social network accounts. People should not assume family members know where to look online, and they need to outline details of their digital life so it can be accessed by executors.

Best advice is the completion and maintenance of a Person Assets Log to ensure those dealing with the estate will be able to access those assets.