Background
A family of six—two adults and four children aged 7 to 16—occupied a mid-nineteenth-century solid-walled property near Chichester in West Sussex under an assured shorthold tenancy since September 2020. The property is part of a former farm complex. The family brought claims against their landlord, Polly Louise Heaver, and the managing agent for breach of implied covenants to keep the property in repair and to ensure fitness for human habitation under sections 11 and 9A of the Landlord and Tenant Act 1985, as amended by the Homes (Fitness for Human Habitation) Act 2018. The trial focused solely on whether the property met the present statutory standard of fitness for human habitation. Claims for personal injury and discrimination under the Equality Act 2010 were deferred to the County Court.
A single joint expert, a chartered building surveyor, inspected the property and took 381 photographs documenting conditions across every habitable room and roof space. His evidence was unchallenged and agreed by both parties. The landlord had served two section 21 notices (termination notices) but had not issued possession proceedings, leaving the tenancy subsisting and the implied covenant in force.
The Court’s Holding
Deputy Judge Paul Bowen KC found the property unfit for human habitation under section 9A. The expert’s uncontested evidence established widespread and severe defects: (1) damp and mould present in every habitable room and both roof spaces, with moisture meter readings reaching saturated “wet” levels (readings of 999 on a scale maxing at 999, and 21–51% moisture content on timber) caused by active water ingress through defective chimneys, external walls, and roof combined with the building’s limited thermal performance; (2) a cracked, deflected, bulging ceiling in the main bedroom with water penetrating and dripping at intervals, covered in asbestos coating (chrysotile) that the property’s own 2025 asbestos survey found damaged and recommended for urgent removal due to collapse risk; (3) excess cold, with the property rated EPC E (the minimum permissible rating for letting) and roof insulation of only 150mm versus the recommended 270mm; (4) active rodent infestation with extensive droppings and gnawing damage to electrical wiring; (5) an electrical installation rated “Unsatisfactory” with exposed live conductors; and (6) other defects including a compromised septic tank vent and defective heating systems.
The court rejected the landlord’s arguments that tenants’ behavior—specifically leaving ventilation vents closed and using heating sporadically—was the primary cause. Government damp-and-mould guidance and the expert’s uncontested evidence established that while occupants naturally produce moisture (approximately one kilogram of water vapor daily), dwellings must cope with normal domestic activities without creating persistent dampness; the fundamental cause here was the building’s structural deficiencies and inadequate thermal performance, not tenant conduct. The court estimated remedial works at £39,150, to be completed in 4–6 weeks. The judge adopted a narrow procedural course: making findings only on present fitness for human habitation and reserving all issues regarding historic breaches, the section 11 repairing covenant, and causation over time for transfer to the County Court to be tried alongside the personal injury and discrimination claims, thereby avoiding issue estoppel and inconsistent findings between courts.
Key Takeaways
- The section 9A implied covenant of fitness for human habitation applies continuously throughout the lease term, not merely at commencement, and is not suspended or discharged by service of a section 21 termination notice.
- A dwelling is unfit under section 10 of the LTA 1985 if “so far defective in one or more” of the statutory matters (repair, stability, freedom from damp, ventilation, etc.) “that it is not reasonably suitable for occupation in that condition.”
- Widespread moisture saturation (meter readings at maximum or near-maximum levels in every habitable room and roof space) combined with active mould growth, structural dampness from water ingress, and poor thermal performance constitutes unfitness, regardless of tenant ventilation choices.
- Damaged asbestos in poor condition or liable to be disturbed presents a health risk triggering the duty to repair, seal, enclose, or remove; no safe threshold of exposure exists, and children are at particular risk.
- Government health guidance on damp and mould, while not formally binding, is relevant and helpful; it recognizes that occupiers’ normal domestic activities (drying clothes, bathing) cannot be blamed for persistent dampness if the dwelling itself is structurally deficient.
Why It Matters
This is one of the first substantive High Court decisions interpreting and applying the section 9A implied fitness covenant introduced by the 2018 Act, which extends protection to the vast majority of private tenancies (those under seven years). The judgment confirms that the covenant is continuous and cannot be evaded by notice-giving, and it provides detailed practical guidance on assessing fitness using expert evidence and objective moisture measurements rather than speculation about tenant behavior. The court’s reliance on unchallenged expert evidence, including moisture-meter readings and photographic documentation, establishes a forensic standard for fitness disputes.
The case is significant for landlords, tenants, and enforcement authorities because it demonstrates that severe damp and mould affecting every habitable room—a common complaint in older stock—constitutes per se unfitness when attributable to structural defects. It also underscores that health risks, particularly to children and those with respiratory conditions, inform the fitness analysis. Finally, the judgment illustrates the court’s willingness to order specific performance (the compulsory carrying out of repair works) and temporary rehousing (decant) to enforce the covenant, providing tenants with a powerful enforcement mechanism beyond damages.