Common Sense Advice for Defending Disrepair Claims

by Kerryn Woollett, Senior Solicitor

Disrepair claims can be brought when part of a property has fallen into disrepair and the landlord has been put on notice of that disrepair but the landlord has failed to carry out the repair in a reasonable period of time. What is reasonable will depends on a number of factors, for example, the extent of the disrepair, the landlord’s ability to carry out the repairs and whether the landlord was able to gain access to the property.

When a landlord gets a claim for disrepair it should first check the tenancy agreement to determine whether the disrepair claimed is something the landlord has agreed to carry out.

The landlord should then consider s.11 of the Landlord and Tenant Act 1985. S.11 provides that there is a covenant implied into the lease that the landlord will:

  • keep in repair the structure and exterior of the dwelling-house (including drains, gutters and external pipes);
  • keep in repair and proper working order the installations in the dwelling-house for the supply of water, gas and electricity and for sanitation (including basins, sinks, baths and sanitary conveniences, but not other fixtures, fittings and appliances for making use of the supply of water, gas or electricity); and
  • keep in repair and proper working order the installations in the dwelling-house for space heating and heating water.

Structure and exterior also includes plasterwork on internal walls and ceilings (Grand v Gill [2011] EWCA Civ 554)

However, a defective extractor fan is unlikely to be considered disrepair because it’s a fixture, fitting or appliance for making use of electricity (rather than an installation for the supply of electricity). However, if the extractor fan is assisting in reducing damp from condensation, this could affect the tenant’s health and therefore there could be a different avenue for bringing a claim against the landlord.

The landlord should also consider s.9A of the Landlord and Tenant Act 1985 which requires properties to be fit for human habitation. This only applies to tenancies granted on or after 20 March 2019, therefore, if this is included in the claim, check the start date of the tenancy.

As early as possible the landlord should keep records of the landlord’s view, not only on whether the disrepair exists, but on who is liable for that defect, for example, if there is a broken window, it’s easy to see that it’s broken, however, who broke the window? Was it the landlord when carrying out other repairs, was it the tenant by throwing something at it or was it someone else e.g. an attempted burglary.

The landlord should also record what work needs to be done to remedy the disrepair and the landlord should remember that this is not something the tenant’s expert can dictate. The landlord should provide its view on what needs to be done and how much it’s likely to cost, as the landlord may have ways of doing the repairs cheaper.

Something that is often overlooked is the impact the disrepair is having on the tenant. Again, the impact of a broken window is fairly obvious – e.g. wind and rain can blow in and the property cannot be secured.

However, the impact of dampness or crumbling brick work on the tenant is less apparent. The court will be assisted by comments about how this impacts the tenant’s way of life, e.g. the tenant may claim that they are ashamed to bring people to property. However, if the landlord has attended the property and noticed a large number of alcohol containers outside the property in the recycling, the landlord should record this, as this tends to show that the tenant has had people at the property, therefore, the disrepair is not affecting them as they are claiming.

In determining the standard of repair the landlord is required to reach, consideration must be given to the age, character and prospective life of the property and its location. Local authority houses can be as good as private sector houses, but there is no obligation to make a 50 year old house look like it was built yesterday.

When carrying out repairs, there is an obligation on the landlord to make good or redecorate after the works are complete. It is true that the tenant is obliged to do internal decorations, but when the landlord has carried out repairs, those repairs are not complete until the area repaired looks as good as it did before.

The landlord is not required to do repairs in the way the tenant demands. The landlord may perform repairs in whichever manner is the easiest and can choose the cheapest option if it wishes.

The obligation when replacing installations, is for a like for like replacement. There is no requirement to upgrade installations or bring these in line with current standards, unless the law requires this in order to comply with regulations.

S.11 does not mean:

  • that the landlord guarantees there will never be disrepair – s.11 is only breached if the landlord is given notice of disrepair and has failed to repair it within a reasonable time and the entitlement to damages only runs from the point in time the landlord is in breach;
  • the landlord will carry out improvements;
  • the landlord will carry out the tenant’s job to use the property in tenant like manner e.g. tenants are supposed to clean the chimney, change lightbulbs, bleed radiators – do the things an owner/occupier would do rather than get a repair person in.
  • the landlord will repair everything in the property e.g. window sills and skirting boards are not included.

Using the property in a tenant like manner means doing the little jobs around the property, not causing damage to the property, keeping the property ventilated and heated to avoid condensation dampness and to allow access.

How can a landlord prove the tenant is causing the disrepair? It must keep good records.

The landlord should make sure it has evidence:

  • of the disrepair;
  • of how the tenant lives in the property;
  • of all the things the tenant could do to avoid living in the property in the way they are;
  • to eliminate the possibility that the disrepair is being caused by other sources (e.g. if damp is alleged, get evidence to show it is not being caused by rising or penetrating damp); and
  • to show the disrepair could be avoided if certain steps where taken.

For example, if damp is alleged, take photos of the areas affected, however, also take photos of any closed ventilation strips in windows, of the tenant’s property up against walls, of washing being dried inside, of unvented tumble dryers being used etc.

The landlord should also keep records of:

  • the state of the property generally, not just the disrepair;
  • anything said by tenants in the course of inspections;
  • attempts to gain access that are not successful and what was done about them e.g. was a calling card or letter left, was contact made with the tenant to arrange another date. This will help show the court the landlord had done all it can to do its job.

Landlords will also need to keep records of any notice given about disrepair. These will often be computerised records and an explanation should be given of these records, for example, they will often contain abbreviations which require explanation, they may contain a number of dates which need to be explained – are these the date notice was given, the date of an inspection, the date works were carried out, the date works were completed or the date an invoice paid? The date of paying an invoice is of no use when trying to determine the date notice was given, but it could be useful to try to prove that works were carried out.

Landlords will also need evidence to show their records are accurate e.g. if a tenant says they reported some disrepair but it is not recorded on the landlord’s computer system, the landlord needs to be able to show that its records are complete and accurate. This would be supported if the landlord is able to provide evidence of how the system and its processes work i.e. there is a process in place whereby all telephone calls and emails received are logged on the computer system, therefore, it’s not possible or is highly unlikely that a report of disrepair could have been made and not be recorded on the computer system.

To protect its position a landlord should:

  • Comply with the Pre-Action Protocol for Housing Conditions Claims (England);
  • Carry out any repairs quickly and efficiently;
  • Flag any issues timeously e.g. has access been given, does the landlord need permission from another landlord or the owner or a neighbouring property to gain access to areas to carry out repairs;
  • Make appropriate offers of settlement but not excessive offers; and
  • Keep a record of what works are done.