This article will focus on a residential landlord’s repair obligations and what a tenant can do when a landlord breaches those obligations. The comments below relate solely to the legal position in England.
What can be considered disrepair?
Pursuant to the Landlord and Tenant Act 1985, a landlord has duties to ensure that the property is fit for human habitation and obligations to keep the structure of the property in repair. Structure includes the heating and hot-water system, any sanitary appliances, and the pipes and wiring.
It is common for a tenant to have a repair responsibility in their tenancy agreement for the internal parts of the building. However, if there are problems or disrepair to the main fabric of the building and its structure, including the roof and walls, or the heating and hot water systems, sinks, baths, or toilets, then those would most definitely be the landlord’s responsibility for repair.
For example, if water was leaking into the property, one of the windows needed to be replaced, the front or back door did not lock and shut properly, or there were problems with the toilet, sink, bath, or shower. Those would all be items of disrepair for which a landlord was responsible.
What are landlords responsible for in terms of repair?
A landlord needs to ensure that, when letting their residential property, the tenant can live in the property safely, that the heating and hot water systems function properly, that there is a safe supply of fresh water, and that the sanitary facilities operate effectively. If, for example, water was not running properly from the bath or shower and was leaking from those appliances into the property, then that would be something a landlord would have to repair. A landlord would also be responsible for making sure that there is no damp, condensation or mould within the property.
What can a tenant claim for?
In the first instance, if an item for which the landlord is responsible falls into disrepair, the tenant should immediately alert the landlord's letting agent or the landlord to the issue and ask them to repair it. If no response is received, depending on the item in disrepair, the tenant might be able to involve their local council, who might serve an Improvement Notice on the landlord, requiring them to come and undertake the necessary work.
There is also a specific pre-action protocol for housing condition claims in England that a tenant may be able to rely upon if, despite the landlord’s knowledge of poor living conditions and disrepair, matters remain unresolved.
The types of claim which the protocol is intended to cover include claims under section 9a and/or 11 of the Landlord and Tenant Act 1985 which imposes duties on the landlord to keep the structure of the building in repair and fit for human habitation, section 4 of the Defective Premises Act 1972, common law nuisance and negligence and claims bought under the express or implied terms of a tenancy.
How can a tenant make a claim?
Hopefully, court proceedings are a last resort, but if a defect has been notified to the landlord repeatedly and no action is being taken, then, with the benefit of legal advice or advice from a local Citizens Advice Bureau, a tenant should send to the landlord a letter of claim that complies with the pre-action protocol for housing condition claims.
That letter should contain details of the tenant’s name and address, details of the defects, including any defects outstanding in the form of a schedule, a history of the defects including attempts to rectify them, details of all of the times that the landlord has been put on notice of the poor housing condition, the effects of the defects on the tenant, the identities of all persons who plan to make a personal injury claim if appropriate, the details of any special damages (i.e. tenant’s goods that might have been damaged as a result of the disrepair) the proposed expert, the proposed letter of instruction to that expert and any other relevant documents disclosed by the tenant.
A copy of the protocol should also be sent to the landlord if the tenant does not believe that the landlord will be able to access it otherwise.
The landlord should normally reply to the letter of claim within 20 working days of receipt. The landlord should supply copies of all relevant documents requested by the tenant and a response to the tenants’ proposals for instructing an expert. The landlord must also provide a response dealing with the issues that have been raised in the letter of claim and either admit liability in respect of the defect, dispute liability and give reasons as to why, and a full schedule of works including anticipated start dates, any offer of compensation and any offer for costs.
If the landlord does not respond within 20 working days of receipt of a letter of claim, then that is a breach of the protocol, and the tenant is then free to issue court proceedings.
Can a tenant withhold rent if the property is in disrepair?
This depends on the terms of the tenancy agreement. It is common for tenancy agreements to provide that the tenant has to pay rent without any deduction or set off, and therefore, whilst a tenant might be minded to stop paying rent until the landlord has dealt with the defects and carried out the repair works needed, a tenant should be aware that withholding the rent may be a breach of their contractual obligations. A landlord may initiate separate court proceedings against a tenant for failure to pay rent and is at liberty to do so. However, in those circumstances, it is common for a tenant to try to defend the unpaid rent claim by raising a counterclaim alleging disrepair.
What are the costs involved in the tenant bringing a claim alleging disrepair?
The protocol provides that if the tenant has to bring proceedings against its landlord and the tenant’s claim is settled without litigation on terms that justify bringing it. The landlord will pay the tenant's reasonable costs. This is stated in the protocol and is great in theory, but very often landlords to refuse to pay the tenant’s costs, especially if court proceedings have not been issued.
If a tenant were to bring a claim against its landlord for disrepair and were able to succeed with the claim, then it is likely that the court would order that the landlord repay the tenant’s costs.
This information is for guidance purposes only and does not constitute legal advice. We recommend you seek legal advice before acting on any information given.
