How to pursue a disrepair claim by Andrew Byles
Although living conditions in England and Wales have vastly improved over the past one hundred years, it is a sad fact that despite that improvement hundreds of thousands of rented homes presently suffer from significant disrepair – including damp, water penetration, leaking pipes and sewerage, defective central heating, damaged or exposed wiring, wet and dry rot, and insecure windows and doors.
Living with disrepair is often very unpleasant and sometimes injurious to health. Fortunately, regardless of whether the landlord is a local authority, a housing association, a company or an individual, they will usually be under a legal duty to keep the rented in home in repair (there are some exceptions, such as some leases for more than seven years and some agricultural tenancies). Tip 1: Where a landlord is under a legal duty to keep the rented home in repair it is not possible to contract out of that duty and any attempt to do so is void – see section 12 of the Landlord and Tenant Act 1985.
In many cases disrepair will be addressed by the tenant simply telling the landlord about the problem and allowing access to the landlord for works to be carried out. Tip 2: When telling a landlord about disrepair tenants should do so by email/text message or follow up any verbal conversation with an email/text message and in either case retain a copy of the email/text message – that way it will be easy to prove that the landlord was notified of the disrepair should legal action be necessary.
Where a landlord fails to promptly carry out repairs, the tenant may bring a claim in the County Court for damages and an order that repairs be promptly carried out.
To successfully bring a claim for disrepair a tenant must prove that:
- The home suffers from actionable defects; and
- The landlord has knowledge of the actionable defects; and
- The landlord has failed to remedy the actionable defects within a reasonable period of time of receiving knowledge of them.
An actionable defect arises where something that the landlord is under an obligation to keep in repair is defective. Section 11 of the Landlord and Tenant Act 1985 is one the of main ways in which a repairing obligation is imposed upon landlords. Although that provision does not require the landlord to improve the property or to remedy inherent design defects, it does require the landlord to keep in repair:
- The structure and exterior of the home (eg, the walls, roof, external doors and windows, and the internal walls and ceilings – including plasterwork);
- The sinks, baths, lavatories and other sanitary fittings, including pipes and drains and guttering;
- The central heating, gas fires, fireplaces, flues, ventilation and chimneys; and
- The gas pipes, electrical wiring and some appliances provided.
Although section 11 is one of the main ways in which a repairing obligation is imposed on landlords, there are other ways. Tip 3: Check the tenancy agreement to see whether it contains any repairing obligations wider than section 11 (phrases like “maintain the dwelling in good condition and repair” and “fit to live in” have been found to require landlords to make improvements and to remedy inherent defects to homes). Also consider whether there was any agreement (including verbal agreement) that the landlord would carry out works to the property at the commencement of the tenancy or soon after and whether there might be any further implied terms (for example, if the landlord provides the fridge there is often an implied term that it will be kept in repair).
There is often a dispute between landlords and tenants as to whether a home suffers from actionable defects. The best way for a tenant to prove that it does is to obtain expert evidence from a chartered building surveyor who is experienced in housing disrepair claims. Tip 4: Where it is not possible to obtain expert evidence, report the defects to the local authority environmental health officer and ask for a copy of the report that they prepare on the condition of the property (when accompanied with dated photographs it will often be persuasive evidence of actionable defects) or obtain a quote for repairs from a reputable builder that describes the defects (again when accompanied with dated photographs it will often be persuasive evidence of actionable defects).
Once there is evidence that the property suffers from actionable defects, consideration will need to be given to proving that the landlord has knowledge of them. This can be easily done where the tenant has sent the landlord emails/text messages and retained copies, where there has been other correspondence about the defects that has been responded to by the landlord (for example, where the landlord has responded to a letter about the defects or acknowledge a telephone call about them) or where there is evidence that the tenant called the landlord’s telephone repairs line (for example, telephone records). Tip 5: Where there is no or little documentary evidence that the tenant told the landlord about the actionable defects, provide as much detail as possible of the circumstances in which the tenant told the landlord about the defects in any witness statement and think about other ways in which the landlord might have received knowledge (for example, the landlord might have visited to collect the rent each week and would have seen the holes in the roof when doing so or the landlord might have failed to carry out the annual statutory inspections of the gas installations and thereby have constructive knowledge of the defective gas boiler).
Even once the landlord has knowledge of the actionable defects, no disrepair claim arises until the landlord has had a reasonable period of time in which to carry out the repairs. What that reasonable period of time is varies from one type of disrepair to another, but generally speaking urgent disrepair (such as no heating in winter) must be remedied very quickly, whereas less urgent disrepair (such as minor plaster damage) might be capable of remedy after several weeks or in some cases even months. Tip 6: When considering whether repairs have been carried out within a reasonable period of time consider Schedule 1 of the Secure Tenants of Local Housing Authorities (Right to Repair) Regulations 1994/133.
The amount of damages awardable to a tenant who has experienced disrepair will depend upon the extent of the disrepair, the length of time that the home has been in disrepair, the cost of replacing any belongings damaged by the disrepair, and the amount of any expenses reasonably incurred by the disrepair (for example, higher heating bills or additional cleaning materials). By way of example, in Yates v Elaby (November 2004 Legal Action 29) £1,125 per year (now £1,546) was awarded to a tenant whose home suffered from mid-range disrepair, including rotten window frames allowing water penetration, episodes of flooding, dampness, defective heating and hot water, and a wood lice infestation; and in Mzae v Abigo (November 2004 Legal Action 29) £4,000 per annum, which represented 40% of the annual rent, was awarded in compensation for dampness, cracked and loose plasterwork, water penetration, overflowing drains, consistent problems with the boiler, and one bedroom being rendered unusable. Tip 7: Usually a tenant can only claim damages for the six years immediately before any disrepair claim is issued at the County Court. If that six years is approaching or has passed, protective proceedings should be promptly issued at court so as to maximise the tenant’s claim period.
In addition to damages, the court will likely order the landlord to carry out any repairs still outstanding at trial. It will not be a defence for the landlord to raise the prospect of severe financial hardship as a result of the order. Although it can take many months for a housing disrepair claim to reach trial, in the majority of cases landlords (even those who were previously reluctant) carry out repairs in order to minimise the amount they will have to pay in damages. Tip 8: Remember that where it is clear that the landlord is in breach of a contractual repairing obligation, the tenant, as an alternative to legal action, has a right at common law to carry out the necessary repairs and to recover the costs and expenses incurred by deducting them from future rent. Alternatively, where there is a serious risk of danger to the tenant’s health because of the disrepair consider applying for an interim injunction.
Before pursuing a disrepair claim in the County Court, tenants and solicitors acting on their behalf must, save in real emergencies, follow the Pre-action Protocol for Disrepair Claims (failure to do so may result in cost consequences). Tip 9: Remember, if the landlord settles the claim without litigation on terms which would have justified bringing a claim the Protocol is clear that landlord should pay damages to the tenant and their reasonable legal costs.
In addition to disrepair claims, there are a number of disrepair related claims that a tenant may potentially bring against their landlord. Tip 10: When considering a disrepair claim, also think about whether there might be a claim: (a) under section 1 or 4 of the Defective Premises Act 1972; (b) for personal injury; (c) in nuisance (eg, where there is leak from another property owned by the landlord); (d) in negligence (eg, where the landlord has negligently repaired the property previously); and (e) for, only where the home is let furnished, breach of the implied term that the home would be fit for human habitation at the commencement of the tenancy.
There are a number of ways in which a disrepair claim may be funded. If the tenant is eligible for legal aid, where there is a serious risk of danger to the tenant’s health the Legal Aid Agency will fund the claim up to the stage that an injunction is obtained. Otherwise, a claim may be fundable by way of legal expenses insurance or a conditional fee agreement. Tip 11: It is difficult to recover legal costs from the landlord where disrepair claims are allocated to the small claims track. Remember that: (a) CPR 26.6(1)(b) provides that a claim should not be allocated to the small claims track where there is a claim for both damages and specific performance, provided at least one of them is worth at least £1,000; and (b) fast-track costs are recoverable up to the point that the matter becomes a small claim if repairs are carried out pursuant to the Protocol. If the claim is allocated to the small claims track, consider a damages based agreement.
Sometimes private landlords try and evict tenants who complain to them about disrepair by serving them with eviction notices under section 21 of the Housing Act 1988. If the tenancy started on or after October 1st 2015 (and from October 1st 2018 for all other tenants) there are some steps that tenants can take to protect themselves from such revenge evictions. Where:
- The tenant complained to the landlord or letting agent in writing (by letter or email);
- The landlord served a section 21 notice after the complaint;
- The tenant complained to the local council because the landlord failed to remedy the disrepair; and
- The council sent the landlord a notice telling them to make improvements or that the council will carry out emergency work,
the court will refuse to make a possession order provided that the council’s improvement notice is served on the landlord before the court determines the possession claim.
Furthermore, if the council sends the landlord an improvement notice or notice requiring improvement and the landlord later gives the tenant a section 21 notice, it will not be valid if it is served within six months of the council’s notice.
Andrew is a barrister at Garden Court North Chambers.