Joseph Harvey & Anor v Polly Louise Heaver & Anor [2026] EWHC 1671 (KB)
Neutral Citation Number:[2026] EWHC 1671 (KB)Case No KB-2025-000237
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 3 rd July 2026
Before
PAUL BOWEN KC(Sitting as a Deputy Judge of the High Court)
Between
JOSEPH HARVEYClaimantsPRISCILLA HARVEYClaimantand four othersClaimantPolly Louise HeaverDefendantsSouthernbook Lettings LimitedDefendantMatthew Lee (instructed by Mark Harvey freelance law) for ClaimantsStuart Brady (instructed by DAC Beachcroft Claims Ltd) for First Defendant for The Second Defendant did not appear.Hearing Hearing dates: 23, 24 and 25 June 2026Approved JudgmentThis judgment was handed down remotely at 10.30am on Friday 3 rd July by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................
Paul Bowen KC :
[1]On 25 June 2026, following a three-day trial, I gave a ruling and order in the Claimants’ favour with my reasons reserved. These are my reasons.[2]The Claimants are a family of six, a husband and wife and their four children aged 16, 12, 11 and 7. They are the tenants of a property near Chichester in West Sussex to which I refer as the Property. The First Defendant is their landlord. The Second Defendant, the managing agent, took no active part on the condition issues. The Claimants bring claims against the First Defendant for the breach of her implied covenants to keep the Property in repair and that the Property is fit for human habitation under s 11 and 9A, respectively, of the Landlord and Tenant Act 1985 (‘the LTA 1985’), as amended by the Homes (Fitness for Human Habitation) Act 2018 (‘the 2018 Act’). They seek an order for specific performance requiring her to carry out the necessary works of repair and to provide and pay for temporary alternative accommodation in the meantime (a ‘decant’), together with damages in relation to the past breaches (‘the housing condition issues’). The Claimants also aver that they have suffered personal injury and discrimination contrary to the Equality Act 2010 as a consequence of the First Defendant’s acts and omissions.[3]The case was listed before me for the trial of the housing condition issues only. By the order of Soole J dated 24 February 2026, the personal injury claim and the claim under the Equality Act were directed to be tried separately and at a later date. On 31 March 2026Master Byass noted the High Court’s lack of jurisdiction over the Equality Act claim and directed that the claim, together with the personal injury claim, should be transferred to the County Court following this trial. I make no findings on the personal injury claim or the Equality Act 2010 claim which are a matter for the County Court.
The approach I have taken: present unfitness
[4]The day before the trial I sought the parties’ submissions on the question of whether my consideration of the housing condition issues should be limited to whether the Property is, as at the date of the hearing, fit for human habitation within section 9A of the LTA 1985, and what relief should follow from any present breach. The Claimants supported that approach; the First Defendant opposed it. The basis of the First Defendant’s opposition was that it should be open to her to argue that the failure to permit access to the Property to allow the Defendants to effect repairs had been ‘wholly or mainly’ responsible for the current state of the Property so that, if I did find it to be unfit, the Defendant would have a defence under s 9A(3) of the LTA 1985. When I pointed out that the First Defendant had not pleaded that ground of defence Mr. Brady made an application to amend the Defence. I refused that application, for reasons I give at the end of this judgment.[5]I then ruled that the claim should proceed in the following manner:a. I will only address the current and prospective fitness for human habitation of the Property under s 9A by reference to the uncontested evidence of the single joint expert.b. I make no findings about the historic fitness for human habitation of the Property, the severity of any unfitness or disrepair over time, the date from which the First Defendant was on notice of any defect, or the apportionment of responsibility over time, including any argument that unfitness was at any earlier period wholly or mainly attributable to the Claimants’ breach of their own obligations under section 9A(3).c. I make no findings in relation to the alleged breaches of repairing covenants under section 11 of the LTA 1985 and I do not address the ‘inherent defect’ question relied upon by the First Defendant that can arise under that section.d. I remit these outstanding housing condition issues to the County Court to be determined alongside the personal injury and Equality Act claims.[6]My reasons for adopting that course of action are as follows:a. The most pressing issue, and the reason for the expedition, is the current fitness of the house for human habitation by the Claimants and the application for an order for specific performance to make the Property fit.b. Findings as to the past conduct of the parties, the historic breaches of the disrepair obligations, and the historic fitness of the Property are not necessary for me to decide those pressing issues.c. A finding that the Property is presently unfit under section 9A does not require, and I do not make, any finding as to the existence or breach of an implied repairing covenant under s 11.d. The historic allegations of breach of both s 9A and s 11 share their facts with the personal injury and Equality Act 2010 claims, which have been remitted to the County Court. To decide them now would risk inconsistent findings between this court and the County Court or of the County Court being bound on those matters by reason of issue estoppel (see Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd [2013] UKSC 46, [17]). To avoid that risk these issues should be decided once, on the full evidence, in the court trying the related claims.e. In addition to the problems of issue estoppel, determining the historic issues here would be likely to generate disputes at the later trial about whether the evidence then given is consistent with the evidence given before me.f. The historic disrepair and fitness claim is, given its value, more appropriately determined in the County Court (see Practice Direction 7A and CPR 30.3) and consistently with the proportionate use of the High Court’s resources.[7]I therefore make findings as to the present condition of the Property for the purposes of s 9A and no more. The findings are intended to be binding in the proceedings remitted below only to that extent. Nothing in this judgment is to be treated as a finding on the historic matters identified above, which are reserved to the remitted trial. Applying Practice Direction 7A and the criteria in CPR 30.3 and having regard to the overriding objective and the proportionate use of this court’s resources, I will transfer the remaining issues to the County Court under section 40 of the County Courts Act 1984, to be tried with the deferred claims.
The Property and the tenancies
[8]The Property is a four-bedroom dwelling of mid-nineteenth-century construction, attached to a neighbouring building and forming part of a former farm complex now in mixed use. It has solid masonry walls and a clay-tiled roof.[9]The Claimants have occupied the Property since 10 September 2020 under successive assured shorthold tenancies. The first was granted after 20 March 2019 when the 2018 Act (which introduced s 9A into the LTA 1985) came into force for new tenancies. It is not in dispute, and I find, that the covenant implied by section 9A applies throughout the term.
The section 21 notices
[10]The First Defendant has served two notices under section 21 of the Housing Act 1988, on 9 June 2025 and 7 April 2026. She has not, however, issued any claim for possession. A section 21 notice does not of itself terminate the tenancy. It founds a right to seek an order for possession; until such an order is made and acted upon, the tenancy continues. The Claimants accordingly remain the First Defendant’s tenants, in occupation under a subsisting tenancy.[11]It follows that the service of the notices has no bearing on the matters I have to decide. While the tenancy subsists, the covenant implied by section 9A continues to bind the First Defendant. The service of a section 21 notice does not suspend, qualify or discharge her obligation to keep the dwelling fit for human habitation, nor the relief necessary to enforce it. The Claimants dispute the validity of the notices and rely on their service as part of their harassment and Equality Act 2010 claims; the First and Second Defendants dispute those allegations. None of those issues arises for decision at this trial. The validity and effect of the notices are matters for any possession claim the First Defendant may bring, and the harassment and Equality Act allegations are reserved to the remitted proceedings. I express no view on any of them.
The expert evidence
[12]A single joint expert, Mr. Paul Badham, a chartered building surveyor, was instructed. Counsel for the First Defendant described him as ‘a very experienced expert who has seen lots of housing disrepair claims’. He reported on 20 April 2026 and answered Part 35 questions on 7 May 2026. Neither party required him to attend for cross-examination, and his evidence (including his answers to Part 35 questions) is unchallenged. The expert took 381 photographs of the Property, copies of which were also admitted in evidence. I treat his factual observations, professional conclusions and photographs as the evidence in the case, while remaining the judge of the ultimate questions of fitness for human habitation and relief.[13]I should add that, although the Claimants invited me in their skeleton argument to enter summary judgment on the strength of the single joint expert’s report, I have not taken that course. This is the trial of the housing condition issues, and I decide the present fitness of the Property and the relief to follow as matters of substantive determination on the evidence, not by way of summary judgment. Nothing turns on the distinction in the result, since the expert’s evidence is agreed and unchallenged, but it is right to record that I proceed by way of trial.[14]The expert’s findings as to the present condition of the Property that I consider to be material are set out in the following paragraphs. I address the question of whether these, individually or collectively, make the Property unfit for human habitation under the heading Discussion and Conclusion, below.
Damp and mould
[15]The expert found damp and mould to be present in every habitable room and in both roof spaces (report, paragraph 9.1.2,10.1 ) and that these are attributable to a combination of the limited thermal performance of the construction and active moisture ingress through the chimneys, external walls and roof (paragraph10.2 ). The visible mould growth was ‘generally of a light extent, with localised areas of moderate intensity’ (report, paragraph 9.1.2).[16]In assessing dampness, the expert recorded moisture readings throughout the Property using an electronic moisture meter (a Protimeter MMS2), the manual for which was admitted in evidence. That manual explains that the instrument has two modes. In pin mode, used for timber and similar surfaces, readings are expressed as a percentage, a reading of 20% or more indicating ‘wet’ or excessive moisture, a reading of 17 to 19% is ‘at risk’ (which I understand to mean at risk of mould growth), with readings below that categorised as ‘dry’. In pinless mode, used for more delicate surfaces or harder surfaces such as masonry, readings are given on a relative scale running from 1 to 999, a reading of 200 or more indicating ‘wet’ or excessive moisture, from 170-199 ‘at risk’ and below that ‘dry’. The expert recorded his readings in Table 1 of his report. Those readings are unchallenged, and I accept them.[17]The expert recorded – and I find - ‘wet’ or excessive moisture in all habitable rooms and in both roof spaces, as follows:(a) Bedroom 1 (the main bedroom): readings of 713 to 228 (pinless) in a descending gradient from the wall/ceiling junction down the wall with mould growth and staining, indicative of moisture ingress tracking from the central valley gutter junction above and condensation; readings of 999 (pinless) and flaking paint and blistered decorations, with staining to the head of the window, consistent with ‘significant moisture saturation’. The ceiling to Bedroom 1, the main bedroom, is deflected and bulging as a result of moisture ingress with decayed timbers above which require cutting out with additional structural support where required (Table 1, reference 12). There is also a visible crack in this ceiling, the covering of which contains asbestos which I consider below. Several videos of this crack were taken by the First Claimant during the evenings of 1st, 4th and 7th December 2025. I watched the video, taken on 1 December 2025, which showed visible ingress of water from the roof space above to the extent that water droplets were collecting and dripping every 10 seconds or so onto the floor below.(b) Bedroom 2: readings of 942-999 (pinless) at all four testing sites, flaking and blistered paint finishes, moderate mould growth and spotting due to moisture ingress as a result of the impaired weather tightness of the solid wall construction above and around the window opening.(c) Bedroom 4: readings of 607-943 (pinless) at the corner.(d) Living room: readings of 246-999 (pinless), attributable to deteriorated mortar pointing, splash-back from adjacent ground finishes, bridging of the damp proof course (if present) exacerbated by overflowing and/ or leaking gutters.(e) Sitting Room: light mould spotting attributable to water ingress into the solid wall construction due to impaired weather tightness at the wall and window junctions and reduced thermal performance of the solid wall construction; a reading of 999 (pinless) on the stained ceiling above the chimney breast and, in the south-west corner, 885 (pinless), reducing to 423 higher up; moisture staining to approximately 300 mm above floor level with a reading of 21.3% (pin) at the skirting; east elevation (south corner), timber decay identified to the skirting boards, with a ‘wet’ moisture content reading of 49.5% (pin mode).(f) Roof Space 1: 25% (pin) on timbers in contact with the south chimney; 25-33% (pin) adjacent to the central valley gutter; up to 51.3% (pin) on decayed rafters around the north chimney; and readings from 870 (pinless) on the masonry stack.(g) Roof Space 2, at the west chimney: 21.2% (pin) in the timber, with pinless readings of 999-657.[18]I was referred to Chapter 11 of guidance issued by the Secretary of State for Housing, Communities and Local Government under section 9 of the Housing Act 2004 (‘the HA 2004’): the ‘Housing Health and Safety Rating System (HHSRS): Operating Guidance, Part 2: A technical guide for assessors’ (June 2026) (‘the HHSRS Operating Guidance’). This is statutory guidance issued by the Secretary of State under s 9 of the HA 2004 to which local authorities must have regard in the exercise of their statutory functions (section 9(2)). Chapter 11 treats penetrating and rising damp, water ingress through defective rainwater goods, and dampness tracking through solid walls that lack an effective damp-proof course as core to the damp and mould hazard, and as matters of the condition of the structure. That is the mechanism the single joint expert describes and which I find: moisture entering through the defective chimneys, external walls and roof of this mid-nineteenth-century, solid-walled dwelling, the readings reaching the ‘wet’ or saturated band in every habitable room and both roof spaces. According to the Guidance a dwelling should be watertight, weathertight and free of persistent dampness (Appendix 1, baseline indicator 17.1). This Property is none of those things.[19]The expert does note that he found window trickle vents that were closed (in one room, Table 1, item 25, those in other rooms were open, items 10, 20, 32) and unchanged filters in the positive input ventilation unit in the roof space (9.1.6, Table, item 7). He suggests that this may be the responsibility of the Claimants as tenants rather than the First Defendant as landlord. While he cannot rule out that these failings may have contributed to the level of damp, he is clear that these are ‘not ... a primary or significant cause’ of the dampness and mould, given the evident defects and the construction (paragraphs 9.1.9, 9.2.2(d) and 10.2; Table 1, item 25). The First Defendant, although initially maintaining that the Claimants’ actions in this respect had wholly or mainly caused any unfitness due to damp, withdrew that contention at trial. She also maintained, at least in her Skeleton Argument, that the Claimants' failure to use central heating and their generation of condensation from daily activities (drying clothes, bathing) meant the damp was ‘squarely within the tenants’ control’.[20]That contention is at odds with the expert’s evidence, which the First Defendant accepted. It also conflicts with the HHSRS Operating Guidance which recognises that occupiers themselves produce moisture - up to about a kilo of water vapour a day - but states that a dwelling must be able to cope with normal moisture production without persistently high humidity, and without the occupiers having to run dehumidifiers or leave windows open for protracted periods; the question it poses (Chapter 11, page 79) is whether the damp is attributable to occupier behaviour or to inadequacies in the dwelling itself. I was referred to the Government’s health guidance, ‘Understanding and addressing the health risks of damp and mould in the home’ (MHCLG, DHSC and UKHSA, updated 1 April 2026) (‘the Damp and Mould Guidance’). Although this guidance is directed primarily at landlords and is not guidance to which a local authority or court is bound to have regard it is both relevant and helpful. This guidance states that it is unreasonable to attribute damp and mould to tenants’ ‘lifestyle choices’, that the fundamental cause will be building deficiencies, inadequate ventilation, inadequate heating or poor energy efficiency rather than tenants’ normal domestic activities, and that tenants cannot be expected to reduce moisture levels if the home does not enable them to do so.[21]I am satisfied that the damp and mould is wholly or mainly attributable to a combination of the limited thermal performance of the construction and active moisture ingress through the chimneys, external walls and roof due to defects or disrepair. These are the First Defendant’s responsibility as landlord.[22]The health risks of damp and mould are well known. The Damp and Mould Guidance contains a helpful indication of the nature of the health risks relating to damp and mould and the need for landlords to ensure that ‘they always identify and tackle the underlying causes promptly, and with urgency when concerns have been raised about tenant health’. The guidance summarises the health risks of damp and mould in the following terms: Damp and mould primarily affect the airways and lungs, but they can also affect the eyes and skin. The respiratory effects of damp and mould can cause serious illness and, in the most severe cases, death (see ‘Health effects of damp and mould’). The tragic death of Awaab Ishak was the result of a severe respiratory condition due to prolonged exposure to mould in a home with inadequate ventilation. The presence of damp and mould can also affect tenants’ mental health. This could be due to worries about the health impacts of damp and mould, unpleasant living conditions, and destruction of property and belongings, among other concerns. Everyone is vulnerable to the health impacts of damp and mould, but people with certain health conditions, children and older adults are at greater risk of more severe health impacts (see ‘People at increased risk from damp and mould’).[23]I conclude that the damp and mould is so widespread as to present a risk to the health, including the mental health, of any occupant of the Property regardless of any particular vulnerability. In addition, I find that the four children (the Third to Sixth Claimants) are at particular risk by reason of their youth. I do not need to make any findings as to the particular impact of damp and mould on the Claimants by reason of the health conditions from which they may suffer, although I touch on these by way of background at paragraph 35, below.
Excess cold
[24]The Claimants aver in their particulars of claim that the Property presents with ‘excess cold’. Although the expert makes no specific finding to that effect, he does find that the Property has ‘reduced thermal performance’ as a result of walls that are uninsulated, roof insulation of 150 mm which is below the current recommended standard of 270 mm and which is in places wetted by water and rodent urine, and an Energy Performance Rating (EPC) rating of E (paragraphs 9.1.6 and 9.1.8). An EPC of E is the lowest permissible rating for a leased property under the Energy Efficiency (Private Rented Property) (England and Wales) Regulations 2015 (SI 2015/962), regs 22 and 23. Below that rating the property is considered ‘substandard’ and may not be let save in certain specified circumstances which are not material. The expert continues, ‘reduced thermal performance increases the risk of internal surface temperatures falling below the dew point, thereby increasing the risk of condensation (particularly when combined with moisture present within the building fabric)’. This is therefore an aspect of the evidence which reinforces the expert’s findings in relation to damp and mould. I find that the reduced thermal performance from the damp and cold, together with the EPC rating of E, give rise to a risk that the Property is excessively cold during winter, but I can take the evidence no further than that.
The ceiling with asbestos coating in Bedroom 1
[25]The textured coating to the cracked, deflected and leaking ceiling in Bedroom 1 contains asbestos (Table 1, reference 12; Part 35 answers 1 and 2). The expert carried out no asbestos survey of his own but relied on an earlier management survey commissioned by the First Claimant: the ‘Management Asbestos Survey Report’ (reference BS/4779) by Blue Star Asbestos Ltd, dated 17 September 2025 (‘the Asbestos Survey’). The expert’s report and Part 35 answers form part of the evidence accepted by the First Defendant. I find that the Asbestos Survey is therefore also agreed, and I admit it in evidence. The survey identifies the ceiling coating to contain chrysotile, or white asbestos. That is the most commonly used, and the least hazardous, of the three principal forms; the others, amosite and crocidolite, are amphibole asbestos and more hazardous still. The survey scored the coating under the material assessment algorithm in the Health and Safety Executive’s guide Asbestos: The Survey Guide (HSG264). That algorithm scores four factors, each from 0 to 3 – product type, extent of damage, surface treatment and asbestos type – to indicate a material’s potential to release fibres if it is disturbed. The coating scored 1, 2, 0 and 1: a total of 4 out of a possible 12. A score of 4 falls in the lowest band. It reflects the low tendency of a firmly bound decorative coating to shed fibres while it remains intact and undisturbed. But the damage factor was scored at 2, denoting ‘medium damage’. And the survey recommended that the coating be repaired or removed, noting that the ceiling should be dealt with urgently if it was in danger of collapse.[26]The risks of exposure to asbestos are addressed by the HHSRS Operating Guidance, Chapter 15. Asbestos is present in many homes and presents little if any risk if the fibres are not exposed. Asbestos in good condition that is left undisturbed may be left in place. The risk arises where asbestos is friable, in poor condition, or where it is, or is likely to be, disturbed. The principal route of exposure is inhalation of fibres which may cause serious lung disease, including lung cancer and mesothelioma. All forms present a significant risk to health, although the amphiboles are more hazardous than chrysotile. Damaged asbestos, or asbestos likely to be disturbed, should be repaired, sealed, enclosed or removed. There is no safe level of exposure: as the HHSRS Operating Guidance puts it, ‘there is no threshold safe lower limit of exposure to asbestos’. Those most at risk in the home are children.[27]The Asbestos Survey found that the coating is damaged, and it sits on a ceiling that is cracked, deflected and bulging, with water penetrating it and a danger of collapse (paragraphs 17 and 25 above). The asbestos is therefore liable to be further disturbed, and to release fibres, by the continuing water ingress and if the roof deteriorates further. I find that the asbestos coating to the Bedroom 1 ceiling presents a risk to the health of the Claimants, in particular to the children.
Electrical installations
[28]The expert noted that the Property currently has an Electrical Installation Condition Report (EICR) rating of ‘Unsatisfactory’, with exposed live conductors and an uncovered junction box (Table 2, reference 16). I was informed by the parties during the proceedings, however, that the electrical issues had been addressed.
Rodent infestation
[29]The expert identified, and I find, evidence of active rodent infestation, with extensive droppings and urine staining in the roof spaces and no control measures in place and gnawing damage to electrical cabling (Table 1, reference 1).
Septic tank
[30]The vent pipe to the septic tank was damaged and the jointing/ seal was inadequate, which allows minor debris to enter the system, with a heavily rusted and deteriorated frame/ surround to the inspection chamber. Although the expert could not find a blocked vent hole (as averred by the Claimants) he advised further specialist investigation by a suitably qualified drainage engineer (Table 2, reference 6).
Defective heating system
[31]The expert makes two relevant findings about the heating system at the Property which I accept. First, the primary source of heating is oil-fired central heating which serves radiators throughout the Property (report, paragraph 8.8). Defects to the oil supply serving that system include a cracked oil-tank filler cap and corrosion to the tank with the additional risk of contaminants in the tank (Table 2, reference 7) and (according to the Claimant, not a finding made by the expert) the risk of exposure to oil-emitting compounds. In addition, there is a wood-burning stove in the Living Room which is cracked and rusting, with no evidence to suggest it has been swept or that the flue is lined (Table 2, reference 8). However, the expert notes there is a dispute between the parties as to whether this is a tenant or landlord’s fitting and there was no evidence before him (or me) to establish the position one way or the other. He advised that the stove should not be used without a HETAS registered engineer’s inspection. He concludes ‘whether the landlord is required to replace the appliance, to remove it and make good the fireplace opening’ is a matter for the court.
Intruder entry: garden fencing
[32]The expert records, and I accept, that the garden fencing has numerous gaps and missing sections, with fencing panels damaged and decayed and some panels and posts propped in position (Table 2, reference 17). There is also significant vegetation in the garden which would make the installation of new fencing difficult. He suggests alternative boundaries such as hedge planting and observes that the maintenance of the garden and garden structures is a responsibility of the tenant under the lease and he makes no recommendations.
Costs estimates
[33]The expert estimates the remedial works at £39,150 excluding VAT and professional fees (Table 1: £32,875; Table 2: £6,275), to be carried out concurrently over a period of 4–6 weeks (paragraphs 9.1.10, 9.4.2 and 10.7).
Other expert reports
[34]I have reached my conclusions on the present condition of the Property on the single joint expert’s report alone. A number of other expert and quasi-expert reports are in the papers, namely the surveyor’s report of Mr. Thomas, the structural engineer’s report of Mr. Murphy, the local authority’s HHSRS assessment, and the mycological and medical reports of Dr Singh and Professor Richardson. The Claimants invited me to receive and rely on their reports; the First Defendant contended that, the court having directed a single joint expert, the single joint expert’s evidence is the only expert evidence admissible on the condition issues. I have found it unnecessary to resolve that dispute. The single joint expert was jointly instructed on the condition of the Property, his report is agreed and unchallenged, and it is a sufficient basis for the findings I make as to present fitness. I have therefore not taken account of any of the other reports in reaching those findings apart from the Asbestos Survey, which was adopted by the single joint expert and therefore admissible on that basis. The admissibility, status and weight of those other reports are for the County Court to determine at any remitted trial or earlier application, where they can be considered on full evidence and, so far as necessary, with the makers available to be questioned.
The impact of the housing conditions on the Claimants
[35]I record, in summary, the Claimants’ evidence that the impact upon them of the conditions in the Property has been severe and deteriorating, particularly given the specific vulnerabilities and disabilities of the occupants. The Claimants have provided medical and video evidence showing that the damp and toxic mould spores have exacerbated severe respiratory illnesses in their children; the Fourth Claimant has suffered acute asthma attacks requiring hospitalisation, while the Sixth Claimant contracted pneumonia in 2024 and experiences persistent nocturnal coughing. The Second Claimant has developed a painful, bleeding skin condition (eczema and urticaria) which her consultant dermatologist links directly to prolonged mould exposure and the sprays used to combat it. Psychologically, the family is exhausted. The constant dripping of water, the fear of the asbestos ceiling collapsing on them while they sleep, and the distress of watching their children’s health decline have severely disrupted their sleep and exacerbated the Second Claimant’s complex PTSD and anxiety. The Claimants maintain that it is entirely unsafe for their highly sensitised family to remain in the Property, particularly while any remedial works are undertaken.[36]I have not made any findings on this evidence, however, as I did not hear from the Claimants because the evidence is disputed and I have been able to resolve the claim based on the single joint expert’s evidence. The legal framework The implied covenant of fitness for human habitation: sections 9A and 10 of the LTA 1985
The legal framework
[37]Sections 9A to 9C of the LTA 1985 were inserted by the 2018 Act, with effect from 20 March 2019 for new tenancies and 20 March 2020 for existing tenancies in England (a separate regime governs Wales, the Renting Homes (Wales) Act 2016). The relevant provisions are set out in full in the annex to this judgment. Section 9A(1) provides: (1) In a lease to which this section applies of a dwelling in England (see section 9B), there is implied a covenant by the lessor that the dwelling— (a) is fit for human habitation at the time the lease is granted or otherwise created or, if later, at the beginning of the term of the lease, and (b) will remain fit for human habitation during the term of the lease.[38]There are therefore two implied covenants: first, that the dwelling is fit for human habitation at the time the lease is granted; second, that it will remain fit during the term of the lease. For ease, I will refer to these in the singular as ‘the implied fitness covenant’. The implied fitness covenant applies, by section 9B, to leases of a dwelling let wholly or mainly for human habitation for a term of less than seven years, and to certain secure, assured or introductory tenancies granted for a longer fixed term, subject to limited exceptions that are not material for present purposes. This encompasses nearly all private leases, thus extending the protection of the implied covenant to a much wider cohort than the existing implied covenant in section 8 of the LTA 1985, which the 2018 Act disapplied in England (but retained in Wales). I return to this, below, when I consider the legislative history.[39]The 2018 Act also extended the covenant to common parts in which the landlord has an interest (section 9A(6)), introduced an implied covenant by the tenant to permit the landlord access to view the condition and state of repair of the dwelling at reasonable times (section 9A(7) and (8)), introduced two exceptions to the implied covenant (section 9A(2) and (3), considered at paragraphs 55-57 below), introduced an anti-avoidance rule by rendering void any provision of a lease that purports to exclude or limit the landlord’s obligations under the implied covenant or which penalises a tenant who relies upon those obligations (section 9A(4)) and conferred jurisdiction on the courts to enforce the obligation by an order of specific performance (9A(5), considered at paragraph 58, below). 40. The test of fitness for human habitation 40. Whether a landlord is in breach of the implied fitness obligation is determined by reference to the test of fitness in section 10 of the LTA 1985. A test of fitness for human habitation was already contained in section 10 in so far as it applied to the implied fitness covenant for low rent properties under section 8, which I will come to. The 2018 Act amended section 10, as follows (with the new wording underlined):(1) In determining for the purposes of this Act whether a house or dwelling is unfit for human habitation, regard shall be had to its condition in respect of the following matters— repair, stability, freedom from damp, internal arrangement, natural lighting, ventilation, water supply, drainage and sanitary conveniences, facilities for preparation and cooking of food and for the disposal of waste water; in relation to a dwelling in England, any prescribed hazard; and the house or dwelling shall be regarded as unfit for human habitation if, and only if, it is so far defective in one or more of those matters that it is not reasonably suitable for occupation in that condition.(2) In subsection (1) "prescribed hazard" means any matter or circumstance amounting to a hazard for the time being prescribed in regulations made by the Secretary of State under section 2 of the Housing Act 2004.(3) The definition of "hazard" in section 2(1) of the Housing Act 2004 applies for the purposes of subsection (2) as though the reference to a potential occupier were omitted. 41. Counsel were unable to point me to any authoritative interpretation of sections 9A and 10 and the revised test of unfitness, although it has been in force for more than seven years. The test it contains is, however, far older. The 2018 Act adapted an existing test for fitness in section 10 which had applied to section 8 since 1985. The concept of fitness for human habitation is older still, running back to the housing legislation of the 19th century. The test developed along four strands: the private-law implied covenant of fitness in low-rent lettings, now disapplied in England; the public-law standard of fitness underpinning local authorities’ powers in relation to substandard housing, now contained in the HA 2004; the duty of builders under the Defective Premises Act 1972 (‘the DPA 1972’); and the statutory-nuisance regime under the Environmental Protection Act 1990 (‘the EPA 1990’). Each has a bearing on the construction of section 10 as amended, in one of two ways: either because it has been expressly incorporated, as certain aspects of the HA 2004 have been, or because the wording is sufficiently close that the case law under it, though not binding, is of persuasive value. I take that legislative history first before turning to the construction of the relevant provisions as amended by the 2018 Act under the heading ‘Conclusion: the meaning of the test for fitness for human habitation in sections 9A and 10 as amended’. (1) In determining for the purposes of this Act whether a house or dwelling is unfit for human habitation, regard shall be had to its condition in respect of the following matters— repair, stability, freedom from damp, internal arrangement, natural lighting, ventilation, water supply, drainage and sanitary conveniences, facilities for preparation and cooking of food and for the disposal of waste water; in relation to a dwelling in England, any prescribed hazard; and the house or dwelling shall be regarded as unfit for human habitation if, and only if, it is so far defective in one or more of those matters that it is not reasonably suitable for occupation in that condition. (2) In subsection (1) "prescribed hazard" means any matter or circumstance amounting to a hazard for the time being prescribed in regulations made by the Secretary of State under section 2 of the Housing Act 2004. (3) The definition of "hazard" in section 2(1) of the Housing Act 2004 applies for the purposes of subsection (2) as though the reference to a potential occupier were omitted.
First strand: the private law implied covenant of fitness for human habitation
[42]Section 9A is the direct descendant of the implied covenant, in lettings at a low rent, that a dwelling be kept ‘reasonably fit for human habitation’ with antecedents going back to the Victorian era. An implied term that certain property be ‘in all respects reasonably fit for human habitation’ at the commencement of a lease was first introduced by section 12 of the Housing of the Working Classes Act 1885, which was intended to reverse the effect of the common law rule that there was no implied term that unfurnished premises should be fit for the purposes for which they were let (Law Com No 238 (1996), 4.9). The original provision from which s 9A is descended, imposing an implied covenant that the landlord would ensure that a dwelling was fit for human habitation at the outset and would keep it fit was section 14 of the Housing, Town Planning &c. Act 1909. That provision was substantially replicated in successive Acts of Parliament: section 75 of the Housing of the Working Classes Act 1890, section 1 of the Housing Act of 1925, section 2 of the Housing Act 1936 (HA 1936), section 6 of the Housing Act 1957 (HA 1957) and section 8 of the 1985 Act.[43]The test for fitness in section 10 has a pedigree almost as long. When the implied term of fitness for human habitation was first introduced in 1885, the term ‘fit for human habitation’ was not defined. The first legislative definition, in the HA 1936, required regard to be had to ‘the extent, if any, to which by reason of disrepair or sanitary defects the house falls short’ of local byelaws. ‘Sanitary defects’ were defined by section 188(1) as including ‘lack of air space or of ventilation, darkness, dampness, absence of adequate and readily accessible water supply or sanitary accommodation or of other conveniences, and inadequate paving or drainage of courts, yards or passages’. The more familiar test of fitness now to be found in section 10 was first introduced by section 9 of the Housing Repairs and Rents Act 1954 (HRRA 1954), which introduced the list of eight ‘matters to be taken into account in determining whether a house is unfit’ for the purposes of the implied covenant in section 2 of the 1936 Act, namely ‘repair, stability, freedom from damp, natural lighting, ventilation, water supply, drainage and sanitary conveniences, facilities for preparation and cooking of food and for the disposal of waste water’. That list was replicated by section 4 of the HA 1957 and by section 10 of the LTA 1985 (with one addition, ‘internal arrangement’). Section 9 of the HRRA 1954 also introduced the test that the property ‘shall be deemed to be unfit for human habitation if and only if it is so far defective in one or more of the said matters that it is not reasonably suitable for occupation in that condition’ which is still to be found in section 10 in both its original and amended form.[44]The implied fitness covenant under section 8 had several significant shortcomings in the protection it provided to private tenants, however. First, the rent limits set by section 8 were never revised and had made the covenant a ‘complete dead letter’ long before it was replaced in England by the 2018 Act: Issa v Hackney LBC [1997] 1 WLR 956, pp. 964F-G. Second, the content of the duty, set out in the list in section 10, omitted serious hazards such as fire and falls. Third, the wider private law protection afforded by the repairing covenant in section 11 requires disrepair - damage or deterioration to the structure or exterior - and so does not apply to a dwelling that is unfit without being out of repair, the paradigm being condensation, damp and mould: Quick v Taff Ely Borough Council [1986] QB 809. To address these flaws, the Law Commission recommended the abandonment of the rent limits in section 8 and to replace them instead with limits on the length of the lease, namely leases of less than seven years’ duration: Law Com No 238 (1996), 8.16. The recommendation lay dormant for over twenty years and was the subject of several unsuccessful private members’ bills before the Homes (Fitness for Human Habitation) Bill, also introduced as a private members’ bill in 2017, gained government support. The resulting 2018 Act, gaining Royal Assent on 20 December 2018, effectively implemented the Law Commission’s recommendation in England in so far as it introduced section 9A, replacing the limitation in section 8 based on rent with one based on the term of the lease, adopting (in section 9B) the seven year term the Law Commission had recommended.[45]Seen against that background, the implied fitness covenant in section 8 and the test for fitness in section 10 (and their predecessors) provides the closest legislative comparator to sections 9A and 10 in its new guise. In particular, the test of fitness in section 10, while now amended, is so similar to that in those predecessor provisions that the case-law under those provisions is highly persuasive. Of particular relevance is Summers v Salford Corporation [1943] AC 283, a decision of the House of Lords under section 2 of the Housing Act 1936 (the predecessor to section 8 LTA 1985) from which the following propositions may be drawn:(a) A house is not ‘reasonably fit for human habitation’ if the state of repair of a house is such that by ordinary user either (i) ‘damage may naturally be caused to the occupier, either in respect of personal injury to life or limb or injury to health’; or (ii) the premises ‘cannot be used and dwelt in … with reasonable comfort’: per Lord Atkin, p. 289.(b) Unfit is not the same as uninhabitable. A single defect can render a dwelling unfit. ‘A burst or leaking pipe, a displaced slate or tile, a stopped drain, a rotten stair tread, may each of them until repair make a house unfit to live in’: Lord Atkin, p. 288. Here, an unusable window due to a broken sash-cord in a small house meant the dwelling was not in all respects reasonably fit for human habitation.[46]That was a decision under section 2 of the 1936 Act, read in the light of ‘fitness’ in section 188, which is slightly different from the test now found in section 9A and section 10 (see paragraph 43, above). Nevertheless, the wording is sufficiently similar as to engage the presumption of statutory interpretation that, ‘where Parliament re-enacts a statutory provision which has been the subject of authoritative judicial interpretation, the court will readily infer that Parliament intended the re-enacted provision to bear the meaning that case law had already established’: R (N) v LewishamLondon Borough Council (SC(E)) [2015] A.C. 1259, [53], per Lord Hodge, citing Barras v Aberdeen Steam Trawling and Fishing Co Ltd [1933] AC 402, 411-412, Viscount Buckmaster. Accordingly, I will apply the interpretation of ‘fit for human habitation’ in Summers unless there is something in the revised statutory wording introduced by the 2018 Act to compel a different conclusion. I can only answer that question after considering section 10’s other statutory antecedents and siblings, to which I now turn.
Second strand: the public law protection of local authority powers to enforce housing standards
[47]Fitness for human habitation also has a long history stretching back to the 19th century as the standard underpinning the statutory powers and duties of local authorities to enforce housing standards. I have mentioned section 4 of the HA 1957, which set the test for fitness for the implied covenant in section 6. The test in section 4 also set the trigger for the exercise of the local authorities’ powers to require the repair of unfit houses under section 9 of the HA 1957. In 1985 the public and private fitness tests were separated into different statutes: the test for the implied covenant became section 10 of the LTA 1985, and the test for the exercise of local authorities’ powers became section 604 of the Housing Act 1985 (‘the HA 1985’), but in both cases the test was in materially identical terms, each reproducing the list of matters (with the addition of ‘internal arrangement’) and the formula in section 4 of the HA 1957. The test began to diverge when section 604 was amended by the Local Government and Housing Act 1989, with the fitness for human habitation test recast in slightly different terms from those in section 10 of the LTA 1985, which remained unchanged.[48]A more significant divergence occurred with the HA 2004 which, when it came into force in 2006, replaced the ‘fit for human habitation’ standard in section 604 of the HA 1985 with a new framework of powers and duties of local authorities to assess housing conditions and to enforce standards. Its central innovation, in Part 1, was the Housing Health and Safety Rating System (‘HHSRS’) by which a dwelling is assessed according to the risk of harm to the health or safety of an occupier by reference to a list of 29 (now rationalised into 21) relevant ‘matters and circumstances’ set out in regulations, currently the Housing Health and Safety Rating System (England) Regulations 2005, SI 2005/3208, as amended from 23 June 2026 by SI 2026/571 (‘the HHSRS Regulations’). Where any of those ‘matters and circumstances’ gives rise to ‘any risk’ (including a temporary risk, section 2(4)) to the health (including mental health, section 2(5)) or safety of, materially, ‘an occupier’ from ‘any deficiency in the building or dwelling’, whether from ‘construction, an absence of maintenance or repair, or otherwise’ (HA 2004, section 2(1)) they are a ‘hazard’ within the meaning of section 2(1). The 2004 Act then requires local authorities to categorise ‘hazards’ according to the seriousness of the risk by reference to ‘prescribed bands’, with those in the highest bands a ‘category 1’ or ‘category 2’ hazard. By section 5 the authority is under a duty to take enforcement action where a ‘category 1’ hazard exists, and by section 7 it has a power to do so where the hazard is ‘category 2’. The available enforcement measures include improvement notices, prohibition orders, hazard awareness notices and, in the most serious cases, emergency action, demolition orders and clearance.[49]This new system is relevant because the 2018 Act has amended section 10 to incorporate some, but not all, of the provisions of the HA 2004 and the HHSRS Regulations. I consider the significance of those amendments when I consider the proper interpretation of section 10, below.
Third strand: Defective Premises Act
[50]A third strand where fitness is relevant is the DPA 1972. By sections 1 and 2A, a person building or working on a dwelling must do so in a workmanlike or professional manner, with proper materials, ‘so that ... the dwelling will be fit for habitation when completed’. Both parties referred me to an authority under that Act as relevant to the construction of sections 9A and 10, Rendlesham Estates plc v BarrLtd [2015] 1 WLR 3663 (Edwards-Stuart J). The Court adopted a materially identical test to that applied by Lord Atkin in Summers, namely that the property is not fit if it is ‘not capable of occupation for a reasonable period without risk to the health or safety’ or ‘without undue inconvenience or discomfort’ to the occupants [68]. In the context of damp and mould, both parties emphasised this passage at [79]: I have no doubt that the presence of mould and damp in living rooms or bedrooms, if persistent and more than minor, renders an apartment unfit for habitation. Damp living conditions are well known to pose a risk to health, and there is evidence from some witnesses of actual risks to health or concern about the potential risk, either to themselves or children.[51]This authority is not binding upon me; it involves different statutory wording in a different statutory context. Nevertheless, the term ‘fit for habitation’ is sufficiently similar that, even if the relevant provisions are not in pari materia (as, for example, in TW Logistics Ltd v Essex County Council (SC(E)) [2021] A.C. 1050, [75]) the case-law under the DPA 1972 is of some persuasive value.
Fourth strand: statutory nuisance
[52]A fourth regime, still older than the others, protects occupiers of substandard housing through the law of statutory nuisance. Descending from the Victorian sanitary legislation, through the Public Health Act 1936, the EPA 1990 now provides that, where premises are in such a state as to be ‘prejudicial to health or a nuisance’ (section 79(1)(a)), the local authority must require abatement by notice (section 80), and a person aggrieved may himself complain to the magistrates’ court (section 82). The test is not fitness for human habitation but whether the premises are prejudicial to health, meaning injurious, or likely to cause injury, to health (section 79(7)). Fitness does, however, have a defined role within the regime: by section 82(3), where the nuisance is such as to render the premises unfit for human habitation, the court may prohibit their use until they are made fit. Damp and mould of the kind in issue here may found a statutory nuisance under this regime to the extent it renders the property unfit: see Ferko v Ealing Magistrates’ Court [2024] EWHC 2592 (Admin), [2025] 1 WLR 564, [64-67]. Conclusion: the meaning of the test for fitness for human habitation in sections 9A and 10 as amended[53]I now consider the meaning of the revised test of fitness for human habitation in section 10(1) as amended, with the addition of sections 10(2) and 10(3), as it applies to the implied fitness covenant in section 9A as introduced by the 2018 Act. In my judgment the following conclusions are to be drawn.[54]First, in assessing ‘fitness’ the same relevant matters (‘repair’, ‘stability’, ‘freedom from damp’ etc.) and test (‘so far defective in one or more of those matters that it is not reasonably suitable for occupation in that condition’) continue to apply as before the amendments, so that a property that was ‘unfit’ before would also be ‘unfit’ after. The core test in section 10 is carried over unchanged, and the older authorities on its meaning remain a reliable guide. In particular, Summers and Rendlesham remain good authority that fitness has two distinct components: premises may be not be fit if, first, the living conditions present a risk to the health or safety of the occupiers; and, second, the living conditions have a sufficiently negative effect on the occupier’s comfort and convenience, even if there is no risk to health or safety. Nothing in the 2018 amendments displace that conclusion.[55]Second, the addition of ‘any prescribed hazard’ in section 10(1) extends the matters that are relevant to the issue of fitness. Although there is clearly considerable overlap with the existing matters (e.g ‘freedom from damp’ and ‘Damp and mould growth’), the addition addresses concerns that the list of ‘matters’ in section 10 was incomplete.[56]Third, by including in the list of relevant factors ‘any prescribed hazard’ by reference to the terms defined in the HA 2004, there is a clear statutory intention to bring about a degree of convergence between the private law and the public law means of protecting tenants from substandard rented accommodation. ‘Prescribed hazard’ is defined by reference to the list of 21 ‘matters and circumstances’ in the HHSRS Regulations (by virtue of section 10(2)) and the definition of ‘hazard’ is to be found in section 2(1) of the HA 2004 (section 10(3)). If any of those 21 ‘matters and circumstances’ exist and they present ‘any risk of harm’ within the meaning of the HA s 2(1) (above, paragraph 48), including temporary harm and harm to mental health, they are both a ‘hazard’ for the purposes of section 2(1) of the HA 2004 and a ‘prescribed hazard’ within the meaning of section 10(1) LTA 1985, as amended. Any such ‘prescribed hazard’ is relevant to the court’s assessment of whether the property is ‘so far defective in one or more of those matters that it is not reasonably suitable for occupation in that condition’ and therefore unfit for human habitation under section 10(1).[57]Fourth, the convergence between the public and private law protection is only partial. The ‘fit for human habitation’ standard is retained in assessing compliance with the implied covenant but plays no part in the exercise of local authority powers since the HA 2004 came into force. Moreover, unlike the local authority when exercising its functions under the HA 2004 (above, paragraph 46), the court’s power under section 10 does not depend upon a finding that there is a ‘category 1’ or ‘category 2’ hazard. Indeed, as Summers and Rendlesham make clear, a finding of unfitness can be made even if there is no risk of harm (i.e. a hazard), if by reason of one of the relevant matters (including ‘freedom from damp’) the dwelling is ‘not capable of occupation for a reasonable period … without undue inconvenience or discomfort’ to the occupants. That said, a local authority assessment of a category 1 or category 2 hazard would be strong evidence of unfitness. I agree with the conclusion of HHJ Luba KC to similar effect in his very helpful book ‘Housing Conditions: tenants’ rights’, 6th ed. (2019) at 2.39. Exemptions: sections 9A(2) and (3) Works that are the responsibility of the tenant: section 9A(2)
Exemptions: sections 9A(2) and (3)
[58]By section 9A(2)(a), the implied fitness covenant does not require the landlord to carry out works for which the tenant is liable by reason of the duty to use the premises ‘in a tenant-like manner’. The duty to act in a ‘tenant-like manner’ is well-established and is relevant in a number of housing contexts. Denning LJ in Warren v Keen [1954] 1 QB 15, 20 described it as a duty to ‘take proper care of the place’: a tenant must turn off the water and empty the boiler if he goes away in winter, clean the chimneys and windows when necessary, mend the electric light when it fuses, and unstop the sink when his own waste blocks it; he must not damage the house and must see that his family and guests do not; but he need do no more than ‘the little jobs about the place which a reasonable tenant would do’. The duty to act in a ‘tenant-like manner’ does not extend to keeping the structure and exterior weatherproof: ibid, 18–19 (Somervell LJ), 20–21 (Denning LJ) and 21–22 (Romer LJ). Responsibility for the structure and exterior, and for keeping the dwelling fit, lies with the landlord - here under sections 11 and 9A of the LTA 1985 - not with the tenant. Defects of that order are therefore never carved out of the section 9A covenant by section 9A(2)(a). Any provision purporting to do so explicitly would in any event be void by section 9A(4) (above, paragraph 39).
Unfitness that is ‘wholly or mainly’ attributable to the tenant’s breach of covenant: section 9A(3)
[59]By s 9A(3) the covenant is also ‘not to be taken as imposing on the lessor any liability in respect of the dwelling being unfit for human habitation if the unfitness is wholly or mainly attributable to … the lessee’s own breach of covenant’.[60]The s 9A(3) question concerns the attribution of responsibility for the premises being in an unfit state. Where the dwelling has become unfit for reasons ‘wholly or mainly’ attributable to a breach of the tenant’s own obligations – including any express duty and the implied duty to use the premises in a tenant-like manner - the landlord is not liable under the implied covenant. The threshold is a high one, however: tenant default that is a real but secondary cause of ‘unfitness’ does not meet it. So, for example, condensation mould wholly or mainly the result of the tenant’s own failure to ventilate or heat the dwelling will defeat the claim; but the same mould, if mainly attributable to a defect that is the landlord’s responsibility, such as inadequate insulation or the absence of effective ventilation, will not, even if the tenant’s use of the dwelling has played some part in it.
Specific performance: section 9A(5)
[61]Where a landlord is in breach of the covenant implied by section 9A, the court may order specific performance of the obligation under section 9A(5) of the LTA 1985, ‘regardless of any equitable rule restricting the scope of that remedy’. Section 9A(5) is the analogue of, and in materially the same terms as, the court’s jurisdiction under s 17 of the LTA 1985 to order specific performance of the s 11 disrepair covenants. Specific performance is an established and available remedy for both tenants and landlords seeking to enforce leasehold covenants, as confirmed by numerous cases (notably Jeune v Queen’s Cross Properties Ltd [1974] Ch 97; Blue Manchester Ltd v North West Ground Rents Ltd [2019] EWHC 142 (TCC); Jan v Torrance [2002] EWCA Civ 431, [15]–[18]; and Rainbow Estates Ltd v Tokenhold Ltd [1999] Ch 64). The words ‘regardless of any equitable rule restricting the scope of that remedy’ in s 9A(5) displace the objections to specific performance of an obligation of this kind identified in Hill v Barclay (1810) 16 Ves 402: want of mutuality, the difficulty of defining the works with precision, and the objection to an order requiring the court’s constant supervision. What survives, and remains relevant to the discretion, is whether damages would be an adequate remedy and whether an order would be oppressive or unjust (Rainbow Estates, ibid, 72H-73D). There is a further distinct requirement that a mandatory order be expressed with sufficient certainty for the defendant to know what he must do. That is a feature of the form of any such order, however, not an equitable bar, and I address it below.
Discussion and Conclusion on liability under s 9A: is the Property presently unfit?
[62]Standing back, I am satisfied from my findings based on the single joint expert’s report at paragraphs 12-33, above, that the Property is, as at the date I made my order (25 June 2026), unfit for human habitation. It is so far defective in several of the matters to which section 10(1) directs attention that it is not reasonably suitable for occupation in its present condition. Those matters include freedom from damp, repair, drainage and sanitary conveniences and a number of the hazards prescribed under section 2 of the HA 2004 and listed in Schedule 1 to the HHSRS Regulations, as amended, namely damp and mould growth, asbestos, structural collapse and falling elements (engaged by the deflected and bulging ceiling to Bedroom 1) and domestic hygiene (engaged by the rodent infestation). Each is incorporated into the fitness standard as a prescribed hazard. I am satisfied that, individually and collectively, those matters render the Property not capable of occupation for a reasonable period without risk to the health or safety of the Claimants. I am also satisfied that, regardless of risk, those matters render the Property not capable of occupation for a reasonable period without the undue inconvenience or discomfort of the Claimants.[63]The most serious failing relates to the damp and mould. The levels of damp throughout the habitable parts of the house, recorded at paragraph 17 above, are, frankly, deplorable. The damp certainly cannot be categorised, as the First Defendant maintained, as no more than ‘minor’ in reliance on Rendlesham, [79]. The argument advanced by the Defendant under section 9A(3) that the damp was ‘wholly or mainly’ caused by the Claimants was withdrawn and, to the extent it was maintained, I reject it. For the reasons I give at paragraphs 19-21 the damp and mould is caused by defects for which the First Defendant is responsible. The damp is so widespread and pervasive that it not only compromises the comfort and convenience of the Claimants but is a risk to their health, including mental health, and a ‘prescribed hazard’ within the meaning of section 10(1) LTA 1985 for the reasons I give at paragraphs 22-23, above. In my judgment the extent and degree of the damp are sufficient to make the Property unfit without the need to consider any of the other relevant factors.[64]With regards to the mould, the First Defendant relies on the expert’s description of the visible mould as ‘generally of a light extent, with localised areas of moderate intensity’. I accept that the mould observed on inspection was at the lighter end. But that goes to the severity and extent of one hazard on one day, not to the overall question of fitness, which must be considered in the round and over a reasonable period of time (Rendlesham, [68]). The finding must therefore be read with two other matters in mind. First, the moisture readings are so high that there is a continuing and substantial risk of further mould developing in all the habitable spaces. Secondly, the expert notes that internal conditions in autumn and winter would probably be less favourable (Part 35 answer 6), which accords with the recognition in both the Operating Guidance and the health guidance that damp and mould are seasonal and worsen in cold conditions. In conclusion, in my judgment, even if the mould in its present state is no more than minor there is a real and substantial risk that the mould will develop and spread given the damp conditions, particularly in winter. The mould puts the Claimants’ health, including mental health, at present and future risk for the reasons I give at paragraphs 22-23 above and renders the Property unfit for human habitation when taken together with the damp.[65]As to the question of excess cold, I have found that the thermal performance of the Property, including from damp, is such that the Property is at risk of excess cold: above, paragraph 24. Excess cold will further compound the problems caused by damp: as the Operating Guidance explains, cold surfaces promote condensation and a dwelling of limited thermal performance cannot drive off the moisture that enters it. But I have insufficient evidence and make no specific finding that the Property is unfit by reason of excess cold.[66]I turn then to the issue of the asbestos. The textured coating to the cracked and deflected ceiling of Bedroom 1 contains chrysotile, and - this is the critical point - it is not intact: the agreed Asbestos Survey records it as having ‘medium damage’ at level 2 of 4, with significant breakage of materials (paragraph 25 above). The danger of asbestos arises precisely when the material is damaged, releasing fibres to be inhaled. Mr. Brady for the First Defendant accepted that such a risk would arise ‘if you poked a snooker cue through it’: that is, in effect, what has happened. A deflecting, cracked and bulging ceiling, carrying a damaged asbestos coating, above a bed, with water actively penetrating it, is an obvious and constant source of anxiety. Furthermore, the asbestos fibres thereby exposed are a not negligible risk: ‘there is no threshold safe lower limit of exposure to asbestos’ (above, paragraph 26). The asbestos therefore constitutes a risk to safety and to health, including mental health, and is a hazard that is sufficient, on its own, to render the Property unfit until it has been repaired or replaced. As Summers makes clear, a defect in one room of a house may render the whole house unfit for human habitation (above, paragraph 44).[67]To these must be added three additional matters. First, the active rodent infestation in the roof spaces, with droppings, urine staining and gnawing damage to electrical cabling (paragraph 29 above), which engages the domestic hygiene hazard. It was rightly agreed that the investigation, identification and eradication of an infestation of this kind falls to the landlord as part of the duty to keep the Property fit, and not to the tenant, whose tenant-like obligation extends only to such matters as not leaving food out and reporting what they see. It is therefore not a matter capable of attribution to the Claimants. Second, the vent pipe to the septic tank is broken, which raises the relevant factor of ‘drainage and sanitary conveniences’. There is a risk of the system getting blocked and there may be a blocked vent-hole: the expert recommends specialist investigation by a suitably qualified drainage engineer (paragraph 30 above). I agree, and until that has been done the Property is unfit for this reason also. Third, given the importance of a functioning heating system to driving off damp and mould and avoiding excess cold, I am satisfied those factors are engaged by the cracked cap to the oil tank, which should be replaced, and the system as a whole must be investigated and serviced by a suitable specialist (paragraph 31).[68]Taking those matters individually and collectively I am satisfied the Property is not reasonably suitable for occupation and is unfit for human habitation as at 25 June 2026.
Notice
[69]The First Defendant argues that section 9A imports a requirement of notice of the defect before liability arises. Whether section 9A contains such a requirement is unsettled, and I do not decide it, because it does not arise on the facts. Even if notice were required, the First Defendant plainly has actual knowledge of the present condition of the Property – through these proceedings, the single joint expert’s report, and her own inspection records. Any notice requirement is satisfied as at the date of this judgment. The historic notice question, namely from what date the First Defendant was on notice of any particular defect, is not decided and is reserved. Relief The order for specific performance of the necessary works to remedy the unfitness
Relief
[70]The Claimants seek an order for specific performance requiring the First Defendant to carry out the remedial works. The court has power to grant such relief under section 9A(5) of the LTA 1985 exercising the principles I have already identified. There is nothing oppressive or unjust in requiring the First Defendant to do that which the statute obliges her to do. Damages would not be an adequate remedy here: the Claimants need a habitable home and an award of damages would not secure the works. Specific performance is the appropriate remedy, and this is a proper case for such an order. Indeed, the First Defendant accepted that to be the case once my finding of unfitness had been made.[71]An order for specific performance must be capable of being complied with and must tell the First Defendant precisely what she has to do. The required works are identified, item by item, costed and timed, in Tables 1 and 2 of the expert’s report and I have made the order by reference to those Tables, which provide the necessary precision. I am satisfied that compelling the First Defendant to execute the works in Table 1, together with items 3, 4, 6, 7 and 22 of Table 2, is the necessary and proportionate step required to cure the Property’s unfitness for human habitation under section 9A.[72]The remaining items in Table 2 are not included: the electrical works (item 16) were remedied during the proceedings (paragraph 28 above); the other items either cross-refer to works already contained in Table 1, were assessed by the expert as requiring no works, or are not necessary to render the Property fit. The order does not include the wood-burning stove in the living room (Table 2, reference 8), which is not the primary source of heat, nor the rear boundary fencing and vegetation (Table 2, reference 17). Whether their repair and maintenance is the responsibility of the landlord or of the tenant is in dispute, and I am not satisfied that work to them is necessary to make the Property fit for human habitation. That question, too, is reserved.[73]The works will require access and a degree of co-operation. The order provides for the Claimants to move out of the Property for a period to allow the works to be carried out. The First Defendant is required to commence the works within a defined period and to complete them within a further defined period, in accordance with the programme agreed by the parties and set out in my order of 25 June 2026.
The application for a ‘decant’
[74]The Claimants also seek an order that the First Defendant provide and pay for temporary alternative accommodation – a ‘decant’ – while the works are carried out. That part of the application is refused. I make no finding that a decant is, or is not, necessary. I refuse the application as presently made and on the present evidence for the following reasons:(a) A ‘decant’ is often an entitlement for tenants in the social sector, whether of a local authority or a housing association, under the terms of the tenancy or the landlord’s policy. There is no equivalent right for a private tenant. The Claimants must therefore establish their entitlement to alternative accommodation in the ordinary way, as a matter of remedy for the breach I have found, and not as a freestanding right.(b) The usual remedy, where a tenant has to move out so that works can be carried out, is a claim for damages for the cost of doing so caused by a breach of the implied covenant – the cost of alternative accommodation, removal, storage and the like. Such a claim is ordinarily determined at the quantum stage, at the end of the trial, once the works and their consequences are known: see, for example, McGreal v Wake (1984) 13 HLR 107. What is sought here is, in substance, a payment on account of those damages, in advance of any assessment of damages. No reason has been advanced for taking that course, and no authority has been cited to support it.(c) As a necessary preliminary to obtaining such an order the Claimants would, in any event, have to prove that moving out is necessary to enable the works to be completed. That evidence is not presently available. The single joint expert, Mr. Badham, does not say that vacation is necessary. His evidence is that no single item of work requires vacant possession, that vacation would on the aggregate scale of the works be more practical or desirable, and that whether it is necessary for these particular occupants is beyond his expertise (report, paragraphs 9.1.11, 9.4.3 and 10.6; Part 35 answers 1, 3 and 8). On that evidence the necessity of a ‘decant’ is not made out.(d) The question whether vacation is necessary is likely to turn on contested issues concerning the vulnerabilities of the Claimants. Evidence of those vulnerabilities will be central to the personal injury and Equality Act 2010 claims, which have been remitted to the County Court. There is a particular risk of inconsistent findings if I were to decide the necessity of a decant now, on partial evidence, when the fuller evidence on the same issues falls to be considered in the remitted trial.[75]For those reasons the application for a ‘decant’ is refused on the evidence before me. The parties have, in the event, agreed that the Claimants will move out and that part of the cost will be offset by the suspension of the rent at the Property during the period of any works, so that the Claimants are not liable for rent at two properties at once. If the First Defendant does not agree to meet the additional costs of a move then these will be potentially recoverable as damages, to be determined at the remitted hearing.
The identity of the landlord
[76]I am aware that, by a witness statement dated 28 April 2026, the First Defendant has asserted that she is not in truth the landlord but acts as agent for the two companies, and that the Claimants have applied to join those companies to the claim. That is a development since the close of pleadings. In her Defence dated 9 October 2025 the First Defendant formally admitted that she is the Claimants’ landlord. I rely on that admission. It is on that footing, and not on any contested finding of my own as to the identity of the landlord, that I am satisfied she is the proper respondent to the claim and that the order for specific performance should be made against her.[77]Any application by the First Defendant to withdraw or amend her admission, and the Claimants’ application to join the companies, are matters for the County Court and are remitted accordingly. I make no finding on the true identity of the landlord, and nothing in this judgment is to be treated as one. Miscellaneous matters The redacted documents
Miscellaneous matters
[78]A dispute arose during the preparation for trial in relation to the disclosure by the First Defendant of various documents containing redactions. Pursuant to the order of Hill J on 9 June 2026, the First Defendant filed with the court (but not served on the Claimants) a separate unredacted bundle of the documents specified in the Schedule to that order, together with her explanation, developed in her counsel’s skeleton argument, for the redactions she had made. Two bases were advanced: part of the redacted material was confidential (an email address of the First Defendant) and the remainder consisted of privileged handwritten annotations on otherwise disclosable documents. I have resolved the issues before me on the basis of the single joint expert’s report alone. I therefore did not need to read the unredacted documents, and I did not do so. Should the Claimants wish to challenge the claim to non-disclosure on either ground in respect of the handwritten notes, it is open to them to make an application at the trial of the remitted issues in the County Court. I need say no more about them.
The First Defendant’s late application to amend
[79]On the first day of the trial the First Defendant applied to amend her Defence. The proposed amendment pleaded that historic failures by the Claimants to permit access to the Property for repairs, in breach of an express covenant in the lease, had been wholly or mainly responsible for the Property being unfit for human habitation, and so provided a defence under section 9A(3).[80]I refused the application, for the following reasons.[81]The principles governing late amendments are well settled. The court has a discretion, to be exercised in accordance with the overriding objective, and must balance the injustice to the amending party if the amendment is refused against the injustice to the other party, and to other court users, if it is allowed: Swain-Mason v Mills & Reeve LLP [2011] EWCA Civ 14, [2011] 1 WLR 2735 (at [69]–[72], [85], [106]); and Quah Su-Ling v Goldman Sachs International [2015] EWHC 759 (Comm), [36-38], the principles in which were approved by the Court of Appeal in Nesbit Law Group LLP v Acasta European Insurance Co Ltd [2018] EWCA Civ 268, [40-45]. A heavy burden lies on the party seeking a late amendment to explain why it was not made earlier, to show the strength of the new case, and to show why justice requires that it be permitted. The later the amendment, the heavier that burden. A very late amendment – one made when the trial is imminent or under way, and which threatens the trial date – is approached with particular caution, and its lateness may itself be a sufficient reason to refuse it.[82]Applying those principles, this was a very late amendment made on the first day of trial. No good reason was advanced for the failure to raise it earlier. The new case was, moreover, unsupported on its central point. Whether the access failures alleged could have been wholly or mainly responsible for the unfitness was a question of causation that should have been put to the single joint expert. It was not. To permit the amendment now would cause the Claimants real prejudice. They would have had no opportunity to meet the allegation, whether through the expert or by evidence of their own. They would be put to an unfair choice: to proceed without that opportunity, or to seek an adjournment and lose the trial date. The injustice to the Claimants, and the disruption to the trial, plainly outweighed any injustice to the First Defendant in being held to her pleaded case. I add this. The proposed amendment went to the historic condition of the Property, and to the attribution of any historic unfitness – matters I do not determine at this trial, but which are among the issues remitted to the County Court. The First Defendant is not therefore shut out from the point. It remains open to her, if so advised, to apply to amend and to pursue that case, properly pleaded and supported, at the remitted trial, where the lateness and prejudice that defeat it now would not arise.
Costs
[83]The Claimants sought an order for the costs of the trial. They sought an order for the payment of costs on account of £130,000 plus VAT as a proportion of the approved costs budget of £180,000 plus VAT. The Claimants also sought their costs on an indemnity basis, accepting that an approved costs budget is still subject to detailed assessment. I refused the application for indemnity costs: I do not consider her conduct to be so far out of the norm as to justify such an order (see the White Book 2026, 44.3.8). I made the order for costs of the trial, subject to a detailed assessment on the standard basis, with a payment on account of £130,000 plus VAT in accordance with CPR Part 44.2(8).
Disposal
[84]For these reasons:(a) I declare that the First Defendant is in breach of the covenant implied by section 9A(1)(b) of the LTA 1985, in that the Property is not, as at the date of this judgment, fit for human habitation.(b) I make an order for specific performance that the First Defendant carry out the remedial works identified in Table 1 and Table 2 items 3, 4, 6, 7 and 22 of the single joint expert’s report, upon the terms set out in the order.(c) I refuse the Claimants’ application for an order requiring the provision or funding of temporary alternative accommodation.(d) All remaining issues, including the personal injury and Equality Act claims are transferred to the County Court to be tried together.(e) The First Defendant to pay the Claimants’ costs of the Housing Conditions trial, subject to a detailed assessment on the standard basis, with a payment on account of £130,000 plus VAT.(f) Liberty to apply. Appendix: the relevant statutory provisions Sections 9A and 10 of the LTA 1985
Appendix: the relevant statutory provisions
[85]Section 9A provides:(1) In a lease to which this section applies of a dwelling in England (see section 9B), there is implied a covenant by the lessor that the dwelling— (a) is fit for human habitation at the time the lease is granted or otherwise created or, if later, at the beginning of the term of the lease, and (b) will remain fit for human habitation during the term of the lease.(2) The implied covenant is not to be taken as requiring the lessor— (a) to carry out works or repairs for which the lessee is liable by virtue of— (i) the duty of the lessee to use the premises in a tenant-like manner, or (ii) an express covenant of the lessee of substantially the same effect as that duty; (b) to rebuild or reinstate the dwelling in the case of destruction or damage by fire, storm, flood or other inevitable accident; (c) to keep in repair or maintain anything which the lessee is entitled to remove from the dwelling; (d) to carry out works or repairs which, if carried out, would put the lessor in breach of any obligation imposed by any enactment (whenever passed or made); (e) to carry out works or repairs requiring the consent of a superior landlord or other third party in circumstances where consent has not been obtained following reasonable endeavours to obtain it.(3) The implied covenant is also not to be taken as imposing on the lessor any liability in respect of the dwelling being unfit for human habitation if the unfitness is wholly or mainly attributable to— (a) the lessee’s own breach of covenant, or (b) disrepair which the lessor is not obliged to make good because of an exclusion or modification under section 12 (power of county court to authorise exclusions or modifications in leases in respect of repairing obligations under section 11).(4) Any provision of a lease or of any agreement relating to a lease (whether made before or after the grant or creation of the lease) is void to the extent that it purports— (a) to exclude or limit the obligations of the lessor under the implied covenant, or (b) to authorise any forfeiture or impose on the lessee any penalty, disability or obligation in the event of the lessee enforcing or relying upon those obligations.(5) Where in any proceedings before a court it is alleged that a lessor is in breach of an obligation under the implied covenant, the court may order specific performance of the obligation (regardless of any equitable rule restricting the scope of that remedy).(6) Where a lease to which this section applies of a dwelling in England forms part only of a building, the implied covenant has effect as if the reference to the dwelling in subsection (1) included a reference to any common parts of the building in which the lessor has an estate or interest.(7) In a lease to which this section applies of a dwelling in England, there is also implied a covenant by the lessee that the lessor, or a person authorised in writing by the lessor, may enter the dwelling for the purpose of viewing its condition and state of repair.(8) The covenant implied by subsection (7) requires entry to the dwelling to be permitted— (a) only at reasonable times of the day, and (b) only if at least 24 hours’ notice in writing has been given to the occupier of the dwelling.(9) In this section— "common parts" has the meaning given by section 60(1) of the Landlord and Tenant Act 1987; "lease" does not include a mortgage term; "lessee" means the person for the time being entitled to the term of a lease; "lessor" means the person for the time being entitled to the reversion expectant on a lease.[86]Section 10 provides: 10. Fitness for human habitation.(1) In determining for the purposes of this Act whether a house or dwelling is unfit for human habitation, regard shall be had to its condition in respect of the following matters— repair, stability, freedom from damp, internal arrangement, natural lighting, ventilation, water supply, drainage and sanitary conveniences, facilities for preparation and cooking of food and for the disposal of waste water; in relation to a dwelling in England, any prescribed hazard; and the house or dwelling shall be regarded as unfit for human habitation if, and only if, it is so far defective in one or more of those matters that it is not reasonably suitable for occupation in that condition.(2) In subsection (1) "prescribed hazard" means any matter or circumstance amounting to a hazard for the time being prescribed in regulations made by the Secretary of State under section 2 of the Housing Act 2004.(3) The definition of "hazard" in section 2(1) of the Housing Act 2004 applies for the purposes of subsection (2) as though the reference to a potential occupier were omitted.
Section 2 of the HA 2004
[87]Section 2 HA 2004 provides: 2 Meaning of “category 1 hazard” and “category 2 hazard”(1) In this Act– “category 1 hazard” means a hazard of a prescribed description which falls within a prescribed band as a result of achieving, under a prescribed method for calculating the seriousness of hazards of that description, a numerical score of or above a prescribed amount; “category 2 hazard” means a hazard of a prescribed description which falls within a prescribed band as a result of achieving, under a prescribed method for calculating the seriousness of hazards of that description, a numerical score below the minimum amount prescribed for a category 1 hazard of that description; and “hazard” means any risk of harm to the health or safety of an actual or potential occupier of a dwelling or HMO which arises from a deficiency in the dwelling or HMO or in any building or land in the vicinity (whether the deficiency arises as a result of the construction of any building, an absence of maintenance or repair, or otherwise).(2) In subsection (1)– “prescribed” means prescribed by regulations made by the appropriate national authority (see section 261(1)); and “prescribed band” means a band so prescribed for a category 1 hazard or a category 2 hazard, as the case may be.(3) Regulations under this section may, in particular, prescribe a method for calculating the seriousness of hazards which takes into account both the likelihood of the harm occurring and the severity of the harm if it were to occur.(4) In this section– “building” includes part of a building; “harm” includes temporary harm.(5) In this Act “health” includes mental health
The HHSRS Regulations
[88]The HHSRS Regulations define the ‘prescribed hazards’ and ‘matters and circumstances’ referred to and incorporated into the implied fitness covenant regime by s 10(2) of the LTA 1985. Regulation 3 provides: 3. — Prescribed descriptions of hazard(1) A hazard is of a prescribed description for the purposes of the Act where the risk of harm is associated with the occurrence of any of the matters or circumstances listed in Schedule 1.(2) In Schedule 1, a reference to a matter or circumstance is, unless otherwise stated, to a matter or circumstance in or, as the case may be, at the dwelling or HMO in question, or in any building or land in the vicinity of the dwelling or HMO.[89]Schedule 1 then provides for the list of ‘Matters and Circumstances’ referred to in Regulation 3. The list was amended by SI 2026/571 with effect from 23 June 2026, reducing the matters and circumstances from 29 to 21. As so amended it provides: 1. Damp and mould growth: Exposure to house dust mites, damp, mould or fungal growths. 2. Excess cold: Exposure to low temperatures. 3. Excess heat: Exposure to high temperatures. 4. Asbestos and MMF: Exposure to asbestos fibres or manufactured mineral fibres. 4A. Indoor Air Pollutants: Exposure to—(a) chemicals used to treat timber and mould growth;(b) carbon monoxide;(c) nitrogen dioxide;(d) sulphur dioxide and smoke;(e) uncombusted fuel gas;(f) volatile organic compounds. Paragraphs 5 and 6 omitted by SI 2026/571 7. Lead: The ingestion of lead. 8. Radiation: Exposure to radiation. Paragraphs 9 and 10 omitted by SI 2026/571 11. Crowding and space: A lack of adequate space for living and sleeping. 12. Entry by intruders: Difficulties in keeping the dwelling or HMO secure against unauthorised entry. 13. Lighting: A lack of adequate lighting. 14. Noise: Exposure to noise. 14A. — Domestic Hygiene:(1) An inadequate provision of facilities for the storage, preparation and cooking of food.(2) Poor design, layout, or construction such that the dwelling or HMO cannot readily be kept clean.(3) Exposure to pests.(4) An inadequate provision for the hygienic storage and disposal of household waste.(5) An inadequate provision of facilities for maintaining good personal hygiene.(6) An inadequate provision of sanitation and drainage. Paragraphs 15, 16 and 17 omitted by SI 2026/571 18. Water supply: An inadequate supply of water free from contamination, for drinking and other domestic purposes. 18A. — Falls on the level: (1) Falls associated with toilets, baths, showers or other washing facilities. (2) Falling on any level surface. (3) Falling between surfaces where the change in level is less than 300 millimetres. Paragraphs 19 and 20 omitted by SI 2026/571 21. Falling on stairs etc: Falling on stairs, steps or ramps where the change in level is 300 millimetres or more. 22. Falling between levels: Falling between levels where the difference in levels is 300 millimetres or more. 23. Electrical hazards: Exposure to electricity. 23A. — Fire and explosions: (1) Exposure to uncontrolled fire and associated smoke and fumes. (2) An explosion. Paragraph 24 omitted by SI 2026/571 25. Flames, hot surfaces etc: Contact with—(a) controlled fire or flames;(b) hot objects, liquid or vapours. 25A. — Collisions, Entrapment and Ergonomics: (1) Collision with, or entrapment of body parts in, doors, windows or other architectural features. (2) The position, location, and operability of amenities, fittings and equipment. Paragraphs 26, 27 and 28 omitted by SI 2026/571 29. Structural collapse and falling elements: The collapse of the whole or part of a building. Paragraphs 5 and 6 omitted by SI 2026/571 Paragraphs 9 and 10 omitted by SI 2026/571 Paragraphs 15, 16 and 17 omitted by SI 2026/571 Paragraphs 19 and 20 omitted by SI 2026/571 Paragraph 24 omitted by SI 2026/571 Paragraphs 26, 27 and 28 omitted by SI 2026/571