The limits of repairing obligations

In December 2002 Mr and Mrs Smith accepted an assured tenancy of a flat from Wrekin. It was a relet and on a preletting inspection the Smiths had noticed and reported a strong smell of cat’s urine. After signing-up, they painted the walls and woodwork and scrubbed and bleached the floor but to no avail.

Three weeks after the tenancy started they wrote to the trust to say the flat was unfit for habitation and they were unable to move in due to the stench. They claimed for their wasted time and money in redecoration and asked the trust to remedy the problem. The trust denied that the flat was uninhabitable or unfit and refused compensation. The Smiths withheld their rent and began a legal claim. The trust counterclaimed for the rent.

Before the case was heard the Smiths gave notice to end the tenancy and the trust remedied the smell. The Smiths’ claim was dismissed in the county court. They were ordered to pay the unpaid rent and costs.

The Court of Appeal refused them permission to appeal. The judge had been right. The presence of a smell was not itself an item of “disrepair”. Nothing in the tenancy agreement, and no subsequent promise, obliged the trust to deal with any smell. The Smiths had seen the property and smelled the smell before taking the tenancy. It was taken at their risk as to whether they could eliminate the smell. The trust had not promised to eradicate it.