Defence Against Disrepair Counterclaims.
Hopefully your reading this ‘before’ being subject of a Disrepair counterclaim.
What is a disrepair claim, and counterclaim.
A tenant can bring a claim against a landlord for disrepair in their property and there is a Pre-Action Disrepair Protocol on the governments website, ( https://www.justice.gov.uk/courts/procedure-rules/civil/protocol/prot_hou )
Tenants don’t have to use this. A tenant will rarely bring a civil legal action ( case ) against a landlord without legally qualified assistance, although some advice services may offer some assistance, to a point.
Legal Aid isn’t available for a pure ( stand-alone ) Disrepair claim and obviously tenants won’t have the funds, or if they have, want to expend or risk them on legal fees.
The usual manner in which tenants deal with disrepair, in no particular order, is to ;
Raise the issue with the landlord ( you’d hope ) In the majority of cases, this is what occurs and the landlord will deal with the matter,- problem solved. Where the repair is difficult – time-consuming to resolve, some tenants will become less patient and consider protesting – escalating. The first and very basic requirement according to Common law is that the landlord must be informed ( or otherwise aware ) of a defect before they become liable.
There are a plethora of free advice services for tenants. Also, the local Authority have a duty in regard to Housing conditions and standards against a multitude of Housing regulations that would challenge some solicitors to comprehend ( so what chance has a landlord got, I hear you ask ) A Housing Health and Safety Rating system can be used by a L.A inspection, where they have to give the owner 24 hours notice of an inspection. ( doesn’t always happen )
If one of the 27 hazards is found in category 1 or 2 ( explanation of HHSRS, is beyond the scope here ) the local Authority can issue an Improvement Notice, or a recommendation depending on the category and severity of the ‘hazard’ ( defect – disrepair ). L.A’s can make a charge for this inspection, if a notice is issued.
Civil action, or a claim against a landlord for ‘Specific performance’ ( a court order directing that the disrepair be rectified within a certain period and also, an monetary judgement / award for nuisance -detriment suffered by the tenant in having to live – put up with the disrepair can be made.
A tenant would either have to fund the legal costs, as above, not covered by legal aid, or find a No-win, no-fee solicitor who was prepared to take on the case on a Conditional Fee Arrangement ( CFA, i.e. if case is successful in favour of the claimant – tenant, a percentage of the damages will be payable to the solicitors in compensation for their time – fees. )
There are a number of such CFA Housing solicitors around the country and they certainly don’t need to be in the area of the properties location to be able to bring a case on a tenants behalf. In order for a claim to be undertaken, and be ‘worth the solicitors time’ the disrepair claimed would need to be of some substance, such that it would attract an award that the CFA percentage would satisfy a solicitors charges – fees.
If a claim is being considered, one of the first steps is that the claimants solicitors will write to the landlord setting out the particulars of the disrepair claim ( i.e the defects ) and will ( ought ) invite Landlord to agree to the appointment of a ‘single joint expert surveyor’ and this professional’s costs will be shared 50/50 between the claimant ( tenant ) and defendant ( landlord )
Solicitors acting for tenants have a few surveyors who they’ve known from past experience, have tendered their reports – findings in a manner ‘favourably couched’ for the complainant.
Likewise, solicitors acting for a defendant will know of surveyors who tend to write their reports more favourably couched for landlords. Of course the qualified professional surveyor is meant to be impartial and report their actual findings and opinions. Nevertheless, tendencies and style, language can provide subtle nuances and each will be chosen according to which party believes suits their purpose. The cost of a survey will vary around £1500 – £2000.
As an example, we recently dealt with a case where a tenant complained about disrepair, and an expert surveyor was instructed for the tenant ( £1,850 ) The landlord also instructed a surveyor. Interestingly, the same defects were found, but a difference in how these were described ( as I’ve alluded above ) We would assist a landlord in selecting a surveyor. Solicitors CFA fees for the Tenant were £ 8,700.
If a landlord were to loose a disrepair claim, the court would order specific performance – repair costs for the defects, likely a sum representing loss of amenity by the tenants of having to live under the condition of disrepair and or a part reduction – repayment of rent to reflect this. In addition to the claimants legal costs.
This manifests in response to a possession claim by the landlord for rent arears. There isn’t any defence to non-payment of rent, other than to allege that the ( full ) rent wasn’t due, as result of the property having defect(s) that the tenants claim should reduce or extinguish the rent ( and even over-compensate them for inconvenience. ( monetary Damages )
This ( Counter ) claim is different from the above disrepair action, which didn’t qualify for legal aid. Because the Counterclaim is in response to a claim for possession which is liable to legal aid, means-tested, the disrepair ( which may be identical defects to the issues in the above Disrepair claim ) is covered and funded by Tax-payers, which landlords pay more than their share of.
For a number of years, Disrepair counter claims have become increasingly common responses by tenants to rent arrears possession claims. Such a counter claim will significantly increase the time taken to a final hearing, with interim, directions hearings ( its all legal expense ) and putting the final hearing, trial back at least 3, to 6 months.
One of our recent cases was delayed 4 months and 3 hearings to trial. The tenants legal costs, had the landlord lost the case, was £5,200. Added to this would be no order for possession or rent arrears, with the tenant likely continuing to occupy the property and not pay rent. A fresh / new claim would have to be commenced, after the defects proven were rectified.
Its worth noting that if the landlord is successful, there is no ability for them to claim their legal costs against the tenant, as the possession hearing is a ‘small claim’ type of hearing where costs are not allowed. The only avenue to protect against this, is to ensure that the tenancy agreement has a clause that the ‘tenant will be liable for the landlords expenses incurred in any breach of the tenants liabilities of that agreement, for the avoidance of doubt, including legal costs.’
By the way, its long been our recommendation to only rent to tenants with a suitable guarantor. We realise there will be many genuine tenants that won’t be able to produce a guarantor, however the legal landscape and risk for landlords has been deteriorating for many years and business has to factor in and take decisions based on risk, not sentiment.
This is an introduction into Disrepair Counter – claims and we’re not going to go into the detail of how we would approach a claim against a landlord, as out tactics will be framed around the specific circumstances of the case, in addition to our experience.
What can be achieved by landlords to place themselves in the best position, Before any such claim arises. ?
Thoroughly vet a prospective tenant. What we suggest is to use a tenant referencing service, but to ask supplementary questions, some of which you’ll devise yourself and others from answers provided to the reference company. For example,
Always ask for a photocopy of a passport or driving license ( something with a photograph, that you can provide to a bailiff, if your seeking to enforce a money claim after eviction ) This can also serve as a Right 2 Rent check in some circumstances.
Where were the last three locations, addresses that tenants lived, ( be wary of tenants in mid-twenties or older who claim to have lived with their parents, some say this because they don’t want you checking with a previous landlord. )
Who was the tenant landlord of the property, Prior to their current -recently left rental property. Unfortunately, it isn’t always reliable to accept a reference from a tenants current landlord, as if the tenant is ‘trouble’ for that landlord, they may want to give a bland acceptable reference ( or even a false, good reference ! ) just to get rid, see the back of that landlords bad tenant – problem.
A landlord can ‘ask’ to see redacted copies of a tenants last 3 months bank statements. What you’d be looking for, is the balance left at the end of the month, before next pay day. Is it often very low, or often in debit ? of course, a tenant doesn’t have to show – produce their bank statement, and neither does a landlord ‘have’ to rent to that tenant.
Another tactic I’ve done, where I’ve felt an inclination, is to ask to visit the prospective tenant at their current rented property. How are they keeping that property ? I’ve had an experience where a prospective tenant was quite willing to show right through their rented property, however, I could see from the front hallway, into kitchen and living room, they looked immaculate, so no need to look further. Another prospective tenant was quite resentful at the suggestion, and I wished them the best of luck in their continued search.
If you don’t want to do this, note what vehicle they turn up to view your property in, and drive past their current rented address. Expect to see their car outside. What does the outside décor of that property look like ?, rusty bikes in the garden, a dog wandering in the garden, that they’ve said they don’t have pets. If you find one lie or even suspicion – gut reaction, discount them. A landlord doesn’t have to give a reason, just as a shop-keeper doesn’t have to give a reason for not wanting your business. ‘Private’ rented sector means just that.
Get a decent inventory and photographs, even video of your property prior to letting. Any disrepair can be referenced to this condition of the property that the tenants took over, especially of their claim for disrepair is within a relatively short time of their tenancy commencement.
Periodic visits, arrange and communicate by text email ( recordable means ) Any conversation you have at the property, follow up with short email – text, …. ‘ good to chat with you at the inspection yesterday. I see that you have no issues to raise and are happy at the property, ‘ or similar, and vary it across subsequent inspections. Don’t make it obvious you are keeping evidence.
At the end of the day, a claim will stand or fall on evidence. Who has the best evidence – records, landlord or tenant.
What are your ( regularly -used, hopefully ) tradespersons observations at the property, ask them. They may tell you if it was poorly kept, had pets or tenants made certain comments etc. If there is anything significant, ask them to text or email you.
If you experience problems, seek advice ( we give free advice )
If you have to commence a possession claim, seek advice before deciding what action to take ( Sec 21 & a Money claim ? ) or a Section 8 rent arrears notice. The government have made the possession process so complex, many landlords are failing at their first attempt, wasting time and money before realising that professional assistance is required.
If your home insurance has legal cover, it can be worthwhile – depending on how many properties you have. If your paying this extra legal cover premium on several properties over a number of years, and like most landlords, only require to evict on rare occasions, it may be more cost effective Not to pay the premiums.
We say this because the full policy schedule of legal cover needs careful examination, as some we’ve seen only covers legal expenses for possession, and Not counterclaims for disrepair.
If there’s a Claim against you, contact us immediately. enquries@PossessionFriend.uk
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