Is your freeholder responsible for damp in your flat?

If you are a leaseholder whose property is suffering from damp you may find that your freeholder says it is not their responsibility to undertake maintenance or make repairs to your flat.

You should look to the lease for repairing and maintenance covenants and the definitions used to describe these obligations.

Freeholders are only responsible for repairs if there are express obligations in the lease or a limited exception applies. Briefly, the exceptions include:

• An obligation to ensure the condition of retained premises do not cause damage to the tenant as long as it is not inconsistent with the lease
• An obligation to ensure demised premises being constructed are completed in a good and workmanlike manner using proper materials so as to be reasonably fit for human habitation
• A duty, if the landlord designed or built the premises, to take reasonable care to ensure the building is free from any defect likely to cause injury
• Where a term can be implied
• Covenants implied by statute.

Freeholders are responsible for damp if it falls within their responsibility under the covenants in the lease. The lease should set out who is responsible for what repairs and maintenance. It might also provide that the leaseholder pays a service charge.

The most common position is that the freeholder is responsible for maintenance and repairs to the structure and common areas, whereas each leaseholder is responsible for their own flat. But this is not always the case.

Whether there is a breach of a repairing covenant is likely to turn on expert evidence about the cause of the damp. If the damp is caused by something that is the freeholder’s responsibility to maintain or repair then they are responsible for the damp.

Common causes of damp that often fall under freeholder responsibility are structural issues like a leaking roof, gutters, rising damp from foundations. Common causes of damp that often fall under the leaseholder’s responsibility are poor ventilation, condensation, and leaks from internal plumbing.

It is also possible that the cause of the damp is a third party.

A covenant to repair does not mean that the freeholder is required to remedy inherent defects such as poor design unless there is disrepair or damage. There may be a claim against the builder under the Defective Premises Act or the Building Safety Act.  Disrepair or damage is a falling away or deterioration from the original condition of the item in question. In other words, the freeholder is not required to make improvements. For example, a freeholder has been held not liable under his repairing covenant for damage caused by condensation resulting from a design defect. The freeholder was only liable for damage to the plasterwork within the flat, as this was considered part of the structure of the flat and therefore fell within his repairing covenant.

Similarly, the freeholder’s liability does not extend to remedying the design defect itself unless it is necessary to repair the damage caused by the defect.

Consequences of breaching a covenant

If Landlords do not comply with the express covenants, the most common remedies for tenants include

i. an order for specific performance

ii. an injunction to carry out the repairs

iii. a claim for damages

iv. self-help

v. declaration

Vi. costs