Housing Disrepair – An Overview

Although living conditions in England and Wales have vastly improved over the past hundred years, it is a sad fact that hundreds of thousands of rented homes still suffer from significant disrepair.

Living with disrepair is very unpleasant and sometimes injurious to health (indeed, as the tragic case of Awaab Ishak shows, it can sometime be fatal). 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 repairs to be carried out. Unfortunately, this is not always so and in such cases consideration will need to be given to bringing a disrepair claim.

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.

When 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. The most common repairing obligation arises from section 11 of the Landlord and Tenant Act 1985 , which implies a term into residential tenancies of less than seven years requiring landlords 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.

Save in the case of certain furnished tenancies, until 2018 there was no effective statutory implied term that a home had to be fit for human habitation. Section 9A of the Landlord and Tenant Act 1985 has changed this in England, with the effect that since March 20^th 2020 (and earlier in many cases) the majority of residential tenancies include a term that:

• The home is fit for human habitation at the time the lease is granted or otherwise created, or, if later, at the beginning of the term of the lease; and
• Will remain fit for human habitation during the term of the lease.

In determining whether a home is fit for human habitation, regard is to be had to its condition in respect of several factors. Those factors include: repair; stability; freedom from damp; internal arrangement; natural lighting; ventilation; water supply; drainage/sanitary conveniences; facilities for the preparation and cooking of food; facilities for the disposal of waste water; and any “prescribed hazard” (see Schedule 1 to the Housing Health and Safety Ratings System (England) Regulations 2005 for the list of “prescribed hazards”).    

Separate provisions about fitness for human habitation apply in Wales – see this Welsh Government guidance to Part 4 of the Renting Homes (Wales) Act 2016.

Tip 3: Check the tenancy agreement to see whether it contains any repairing obligations wider than section 11 (look for phrases like “maintain the dwelling in good condition and repair” and “fit to live in”). Also consider whether there was any agreement (including any verbal agreement) that the landlord would carry out works to the home 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).

In addition to disrepair claims, there are several disrepair related claims that a tenant may potentially bring against their landlord.

Tip 4: 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) under section 1 of the Occupiers’ Liability Act 1957 (particularly relevant where there are issues with common areas); (c) for personal injury; (d) in nuisance (eg, where there is leak from another property owned by the landlord); (e) in negligence (eg, where the landlord has negligently repaired the property previously); and (f) for, where the home is let furnished and if section 9A of the Landlord and Tenant Act 1985 does not apply, breach of the implied term that the home would be fit for human habitation at the commencement of the tenancy.

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 5: Where it is not possible to obtain expert evidence (eg, where the cost is prohibitive), report the defects to the relevant local authority’s environmental health officer and ask for a copy of their report 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 in as much detail as possible (again when accompanied with dated photographs it will often be persuasive evidence of actionable defects). If tenant is concerned only about repairs, not compensation, promptly reporting the defects to the local authority may also resolve matters quickly without the need for legal action.

Once there is evidence that the home 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, the tenant’s telephone records).

Tip 6: 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 7: 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 (although the Regulations only apply to local authority tenants, they arguably provide a general indication of how quickly certain repairs should be carried out).

A tenant may seek general damages as compensation for the disrepair experienced. The amount will usually depend upon the extent of the disrepair, the length of time that the home has been in disrepair and the amount of the rent. An award of damages that exceeds the rent payable for the period of the disrepair is not usually made, but in the rare case where this restriction would result in inadequate compensation the court may make a more general (“global”) award.

In addition to general damages, a tenant may also seek as special damages the cost of replacing any belongings damaged by the disrepair and the amount of any expenses reasonably incurred because of the disrepair (for example, higher heating bills or additional cleaning materials).

In cases where personal injury has been suffered because of the disrepair, personal injury damages will also be awarded (personal injury will usually need to be proved by expert medical evidence).

Tip 8: Usually, a tenant can only claim damages for the six years immediately before any disrepair claim is issued at the County Court (three years for personal injury). If that six years (or three years for personal injury) is approaching or has passed, protective proceedings should be promptly issued at court so as to maximise the tenant’s claim period. Also, remember that a landlord may only rely upon limitation if it is expressly pleaded in the defence.

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 because of the order. Although it can take many months for a housing disrepair claim to reach trial, in most cases landlords (even those who were previously reluctant) carry out repairs to minimise the amount they will have to pay in damages.

Tip 9: 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 10: 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.

There are several 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. As an alternative to pursing a claim in the county court, the tenants of local authorities and housing associations may complain to the Housing Ombudsman about any disrepair they experience. Although often not a generous as the county court, the Ombudsman can award compensation and provides a straightforward route for resolution in cases where legal funding is unavailable or legal action is undesirable. Guidance is available here.

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 26.9(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 to evict tenants who complain to them about disrepair by serving them with an eviction notice under section 21 of the Housing Act 1988. Unfortunately, this is a risk associated with pursuing a disrepair claim against a private landlord (if the government abolishes no-fault evictions in this Parliament as planned, this is a risk that will be very much reduced and there are already steps that can be taken to minimise this risk).

Tip 12: Tenants may be able to protect themselves from such retaliatory eviction by complaining to their local authority’s environmental health officer, although success will depend upon whether the local authority sends the landlord a notice telling them to make improvements or that the local authority will itself carry out emergency work – see here for more details.