Moorjani v Durban – Court of Appeal Decision – Absent Leaseholder’s claim for damages arising out of disrepair

This case was considered by the Court of Appeal on 4 December 2015 and concerned a claim by the leaseholder for damages for disrepair when the leaseholder was not occupying the flat concerned for reasons unconnected to the disrepair.

The basic position in landlord and tenant disrepair cases, even those involving leaseholders, is that where the landlord is in breach of their repair obligations the tenant is entitled to damages to put them back in the position had the breach not occurred. Damages will often relate to specific items of loss (known as Special Damages) such as damaged belongings and expenses incurred in obtaining alternative accommodation while the repairs are carried out. However, general damages for interference with and loss of enjoyment of the property are also payable by the landlord where they have breached their duty. The method of calculating the general damages is based on a percentage of the rent paid. In leasehold properties the rent is often minimal and a token amount. Therefore, in those circumstances a notional rent should be used to calculate the general damages.

In this case the landlord had carried out refurbishment works in 2005 which resulted in a flood into the leaseholders flat. Another leak occurred a year later. At the time, the leaseholder was living elsewhere. When the case was first heard the claim for general damages relating to the period that the leaseholder had been away from the property was dismissed as the judge at first instance took the view that the leaseholders non-occupation meant there was no basis for the claim. However, The Court of Appeal did not agree with that approach and took the view that even though the leaseholder was absent from the property when the breach occurred they  still suffered an interference with their property. Therefore, the starting point was to assess damages by reference to the rental value of the property. However, the damages should then be reduced by half to reflect the fact that the leaseholder was not occupying the flat at the time of the breach.

It is important for landlords to be aware of their repairing obligations and the fact that even if a tenant is not in occupation of their property when disrepair occurs that they can still be entitled to damages for loss of amenity as well as any actual specific loss such.


For further information, please contact Neil Lawlor or Alex Wyatt.


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