Disrepair Claims and How To Tackle Them
Author: Katie Hardie
Key Contact: Jennifer Butcher & Neil Morgan
One of the biggest issues social housing providers encounter is claims brought by tenants for disrepair.
Whilst preventing tenants from bringing disrepair claims is not always going to be possible, there are a number of steps a social landlord can take and measures they can put in place to make the handling of disrepair claims less onerous and put themselves in the strongest position possible when faced with a claim.
Below are some top tips to keep in mind when dealing with disrepair claims.
Letter of claim
If a tenant wants to pursue a social landlord for disrepair, it must do so under the Housing Disrepair Protocol (“the Protocol”) and a letter of claim should be sent to the landlord at the earliest reasonable opportunity to start this process.
Following the Protocol is crucial as there are costs consequences for non-compliance or failure to adhere to the timescales set out. Any letter received from a tenant must be dealt with efficiently and within 20 working days of receipt, as set out in the Protocol. If a landlord fails to respond to the letter of claim in time or at all this is regarded as a failure to comply with the Protocol and means that a tenant is then free to issue proceedings. It is therefore imperative that landlords act quickly.
However, although there is a timeframe in which a landlord must provide a response, they should carefully consider the content of any letter of claim received. It is important to remember to look out for key bits of information such as whether there is an indication that the alleged disrepair could be urgent, for example a leak or infestation, which would need to be dealt with immediately.
Experts and access
The protocol gives detailed guidance on the instruction of experts. It advises parties to consider whether an expert is necessary. If the issue only relates to the level of damages claimed rather than to the disrepair itself, an expert’s view may be unnecessary and photos or a video, for example, may suffice.
If parties consider that an expert is needed, access to the property will need to be given in order for the expert to inspect the alleged disrepair.
A landlord must:
- give reasonable notice of the need for access (except in an emergency);
- give access to common parts as appropriate (for example, to allow the inspection of a shared heating system); and
- take reasonable steps to give access to a tenant for the purposes of inspection, even if the tenant is no longer in occupation.
Similarly, a tenant must also give reasonable access to the landlord for inspection and repair in accordance with a standard tenancy agreement.
If it becomes apparent that there are access issues when a landlord is trying to arrange works or inspections, a landlord can review the tenancy agreement to see whether there is a provision setting out what they can do in the event access is denied.
However, best practice would be to (1) arrange an appointment with the expert and tenant, (2) prior to the appointment send a letter to the tenant (and their solicitors) that clearly states the time and date so there can be no disputing this further down the line, and (3) proceed to attend on the date and time. If the expert cannot access the property (4) ensure they evidence that an attempt was made. This is helpful because failed access can work in a landlord’s favour if a disrepair claim is brought by a tenant. A landlord may want to be persistent and carry out these steps at least three times before considering commencing court action against the tenant themselves.
Records and documentation
If a disrepair claim is ultimately brought by a tenant, it will be helpful to the landlord’s case if it can provide documentation to evidence complaints of disrepair received and details of any works that have been undertaken in response. It is unlikely that a tenant will keep detailed (or any) records and often the courts will expect a landlord to have these (despite the burden being on the tenant to prove its claim). If this is the case, a landlord will be in a much stronger position to defend a tenant’s claim. It is therefore worth ensuring that as a landlord you have reliable reporting systems in place.
Settlement
A landlord will always have the option to try to reach a settlement with the tenant should they bring a disrepair claim. Once a claim is issued, costs can very quickly escalate (and will not always be recoverable from tenants even if a landlord is successful in defending a claim) and litigation is never without risk. Therefore, it may sometimes be worth taking a strictly commercial view and attempting to settle. That said, if a landlord is confident in defending a claim and has strong contemporaneous evidence to back up its defence, they may wish to fight the claim all the way to trial.
The above measures and tactics can be applied to all types of disrepair claims and if these are borne in mind when dealing with issues of disrepair it will more than likely be less time consuming and costly for landlords.
If you would like further assistance, please contact the Litigation & Dispute Resolution Team.
