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How to deal with a tenant disrepair claim

Updated: September 26, 2018

Landlords, letting agents and portfolio owners are increasingly facing property disrepair claims by tenants. One of the difficulties faced by landlords and property owners is that frequently a tenant will qualify for legal aid. Not only will a legally aided tenant have their costs covered but they will be able to make you pay them if you lose. If you win against a legally aided tenant you cannot recover your costs. That can often seem unfair and immediately put the landlord at a disadvantage. It can be very unfair. So how best to deal with a disrepair claim?

Disrepair can be incredibly broad and each case varies significantly. We have seen claims involving lightning strikes and flooding within properties at one end of the spectrum to a damp patch caused by the tenant placing a clothes dryer without proper ventilation at the other.

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The best starting point is to try to avoid any disrepair in your property in the first place and fully documenting that maintenance. Implementing a system and process of regular inspection and maintenance identifying and rectifying problem areas immediately is best practice. This approach also ensures there is a clear paper trail and useful records and evidence if a disrepair claim is later pursued by a tenant. Keep in mind that one of the factors the court will take into account when considering the amount of any compensation is how long any disrepair has been present. If there have been regular documented inspections these will obviously be extremely useful.

The second aspect is to know what your obligations are. These are hard to summarise in detail however the key aspects are;

1. To know and to adhere to the content of the tenancy agreement (i.e. do what you have promised to do within the contract);
2. To ensure you act in accordance with the terms implied by section 11 Landlord and Tenant Act 1985 and the duty of care implied by Section 4 Defective Premises Act 1972. In summary this legislation automatically implies repairing obligations into every tenancy including the supply of space heating and heating water, water, gas, electricity and sanitation. The Landlord and Tenant Act also obliges a landlord to keep the structure and exterior of the dwelling-house in repair. The Defective Premises Act 1972 implies a duty on landlords to take responsibility for defects leading to personal injury or damage to a tenant’s property; and
3. To ensure all of the obligations of the Deregulation Act 2015 (in force since 1st October 2015) are also complied with- including providing Gas Safety Certificates and Energy Performance Certificates. More details on this are available here.

Unless the issues are particularly high risk or urgent a tenant will need to set out the details of their disrepair allegation in writing. That letter will need to comply with the Housing Disrepair Pre action Protocol which is part of the Civil Procedure Rules 1998.

The legislation and Protocol make for fairly dry reading but the key point is that receipt of a letter of claim or any mention of disrepair or the condition of the property should be a warning sign that landlords should react to.

Under the protocol the landlord has 20 working days to respond to such a letter. I would suggest the landlord should reply much faster if they are able to.

This protocol response should not be confused with the requirement to provide an ‘adequate response’ to any tenant complaint within 14 days implemented by the Deregulation Act 2015 referred above. A ‘complaint’ by a tenant is anything in writing concerning the condition of the property but is separate to a letter of claim under the protocol referred to above. If an adequate response is not provided then that may lead to a claim but otherwise a complaint is not a claim in its own right.

If a landlord receives any correspondence or notice from the local authority such as a notice of inspection or an improvement notice in accordance with the Housing Act 2004, again this should be treated as notice of disrepair with the obvious risk of a disrepair claim being brought against the landlord by the tenant. Usually the local authority will only become involved upon receipt of a negative report from a tenant. Failure to complete remedial works set out within an Improvement Notice can even result in the council completing works themselves before seeking to reclaim the monies from landlords. Landlords should also be aware that a notice of disrepair from the tenant and/or the local authority may affect their ability to serve a valid notice under s21 of the Housing Act 1988. For more information on this please read our blog.

The most important aspect at any stage where there is a risk of a disrepair claim is for landlords to immediately get organised. As with most aspects it is right to say that prevention is better than cure. If unforeseen events occur however then landlords should ensure all papers, notes and records are in order, particular the contractual documents, any correspondence (including emails) any surveys or reports.

Depending on the complexity of the disrepair it may be necessary to instruct an expert to attend the property to produce an expert report. The content of the report will be extremely important and will confirm to the court the extent of the damage/disrepair, and in simple terms how bad the disrepair has been (or is).

We would strongly advise landlords to obtain legal advice at an early stage if a disrepair claim appears likely. The tenant may be claiming significant sums and will almost certainly also seek to recover their costs which are recoverable if they win, even if they have been funded by legal aid. Those costs can run to thousands of pounds for even apparently minor disrepair and therefore landlords need to take proactive steps to rectify any problem as soon as they are provided with notice. And remember a landlord cannot recover their costs from a legally aided tenant even if the landlord is successful in showing there was no disrepair.

Recommendation

1. Conduct regular documented inspections of the property;
2. Complete maintenance and repairs at the property in a timely manner;
3. Retain all copy letters and documents as evidence;
4. Ensure you are aware of your obligations- for example it is not possible to contract out of the Landlord and Tenant Act 1985 and that means that as a starting point landlords will always be responsible for providing adequate space and water heating;
5. Ensure you address any complaints or reports by a tenant within 14 days, preferably immediately, and otherwise ensure that you are familiar with the aspects of retaliatory eviction legislation before pursuing any claim for possession against a tenant alleging disrepair.

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Alex Cook is a Director at Helix. Alex initially trained academically as an unregistered barrister and was a Partner and Head of Civil Litigation at a large firm based in the South East before joining Helix Law. As well as focussing on expanding Helix, Alex specialises in commercial and property related litigation and he has acted for a broad range of clients including offshore property investment funds, small businesses and individual property owners.

This article is written to raise awareness of the issues it discusses and it may not be updated after it is first written, even if the law changes. It is not intended to be legal advice and cannot be relied on as such. Helix Law is not responsible or liable for any action taken or not taken as a result of  this article. If you think the matters set out affect you and you wish to apply them to your particular circumstances then we are happy to give you free initial telephone advice. 

Contact Helix Law on 01273 761 990 or email: [email protected]