According to the recent case of Mansing Moorjani v Durban Estates Limited (2015), the answer is yes.
Moorjani had a long lease of a residential flat in a mansion block. He made a claim against his landlord for losses in respect of damage caused to his flat from a flood in the flat above. The claim was for the landlord's breach of covenant to keep the building insured and use any insurance monies to reinstate damage caused by an insured risk and also for failure to keep the common parts in repair. When the flood occurred in 2005, Moorjani was not living in the flat and did not return until 2008 after repair works had been completed. Moorjani claimed:
- special damages for the cost of repairing some outstanding items; and
- general damages for breach of the landlord's obligation to insure and reinstate the building and repair the common parts over a 10 year period.
At first instance, the court refused the special damages claim on the basis that Moorjani, for reasons not connected with the flood, had not been living in the flat between the flood and completion of the repairs and also had not proved his claim for the items. It did, however, award damages in respect of the common parts but only for the years when Moorjani lived in the flat. Moorjani appealed.
The question was whether he could claim for loss arising during a period of disrepair if during that period, and for reasons unconnected with the disrepair, Moorjani had chosen to live elsewhere. Was it right that he should be awarded damages for loss of amenity, discomfort and distress or should damages only be awarded for impairment of the amenity value of his proprietary interest?
The Court of Appeal said in most cases, the question does not arise. Either the tenant stays in the flat so that his personal loss of amenity and inconvenience is the same as the impaired amenity value of the flat, or he vacates because of the disrepair, so that his non-use of the flat is in fact caused by the breach.
In this case, the Court of Appeal disagreed with the first court's dismissal of the special damages claim. The first court had been wrong to treat Moorjani's absence from his flat during the period of disrepair as fatal to his whole claim for special damages. If impairment of a tenant's right to enjoy property was the correct way of identifying loss, then in principle it should be irrelevant whether he occupied it continuously or not. If, conversely, the loss claimed was for personal inconvenience, distress and discomfort, then what the tenant did with the property during the period claimed was crucial. Non-use in that instance would be fatal to the claim. Use only for weekends or holidays may diminish the amount pro rata.
The court held that Mr Moorjani suffered the same loss as would have been suffered by a tenant who had remained in occupation throughout i.e. an impairment to the enjoyment of his property rights for which he had paid a premium. The starting point for valuing that impairment should be by reference to the rental value during the period of disrepair, with a substantial discount to reflect the fact that the repairs were cosmetic. They should then be further reduced by the fact that Mr Moorjani chose not to live in the flat so that the effect of the impairment on him was lessened. His appeal was therefore allowed and both special and general damages were awarded in different amounts according to the periods when he was in and out of occupation.
This decision must be correct. It would not have been fair for a landlord who had been in breach of its covenants to repair to not have to pay for damage caused by that breach simply because the tenant was absent at the time. What would that have meant during, say, holiday periods when the tenant 'chose' not to be at home? It would been a disincentive to landlords to fulfil their obligations and could have prompted tenants to look to other remedies such as withholding rent or service charge. As it is, the case has provided comfort to tenants and guidance to landlords in dealing with disrepair claims.
This document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.