Disrepair And Loss Of Amenity

The Court of Appeal has clarified when you can claim damages for loss of amenity. The case of Moorjani v Durban Estates Limited concerned a flat that was in disrepair because of the landlord’s failure to comply with its repairing obligations.

The disrepair affected both the flat and the common parts which were described as “dilapidated, shabby and dingy”. However, the flat was not uninhabitable and there was no damage to the capital value of the flat.

For reasons unconnected with the disrepair, the tenant chose not to live in the flat. Nevertheless, the tenant issued proceedings seeking damages for loss of amenity (that is to say, compensation for interference with his right to use and enjoy the property).

The tenant’s claim was initially dismissed because it was argued that the tenant couldn’t possibly have suffered any inconvenience as he was not even living in the flat.

The tenant appealed and argued that it could not be fair for a landlord to escape paying compensation simply because a tenant happened to be absent from the property. The case ended up in the Court of Appeal.

The Court of Appeal found in favour of the tenant and ruled that the tenant’s non occupation of the flat was not fatal to the claim for compensation for loss of amenity. The tenant had paid a full premium for the lease and the tenant’s loss consisted of the impairment to the rights of amenity granted by that lease. The court awarded damages to the tenant calculated by reference to the diminished rental value of the property during the period of disrepair.

The case serves as a useful summary of the principles that the court will apply when awarding damages for disrepair to residential long lease holders.