If you live in a rented property and your home is in a state of disrepair, it may be that your landlord would rather evict you than pay for the repairs to be completed.
In such cases, there are steps that you can take to prevent yourself from being evicted, but only if you are not in breach of the terms of your lease.
Improvement Notices
Landlords can normally evict their tenants once the initial term of a lease has expired without giving a reason. This is known as the Section 21 process. It comes from Section 21 of the Housing Act 1988. If you have complained about the condition of your property to your council the landlord could be barred from evicting you in this way. If the council serve an improvement notice on the landlord they are not allowed to use this type of eviction for six months. When the six month period runs from varies.
If you have complained about disrepair and receive an eviction notice it may not be too late. Reporting the matter to your council immediately is advisable. If they serve an improvement notice after the eviction notice it could be treated as applying retrospectively. It all depends on you being able to prove you complained of the disrepair before the eviction notice was served.
This only applies to Section 21 evictions. Evictions under Section 8 of the legislation are normally based upon the fault of the tenant. They usually require you to have breached the terms of the lease. The most common ground reason is that the tenant is in rent arrears of more than two months. In these cases the landlord is not barred from seeking an eviction if the council has served notice.
If your property is not in a state of disrepair, Shelter has general guidance for you to consider.
If you are suffering from disrepair, you should obtain specialist legal advice. MJV Solicitors in most cases can offer no win no fee assistance to clients suffering from housing disrepair. Call us today on 01253 858231 or e-mail info@mjvlaw.co.uk and one of our team will call you back.
by Jane Willacey
We were instructed in May 2021 by Mr H from North London who had been experiencing ongoing leaks within his council flat since December 2020. We took his case on under a ’No Win No Fee’ agreement.
Our client noticed water coming through the light fittings in his bathroom and hallway on 23rd December 2020, this was reported to the council on the emergency line and a work man attended, our client was told that there wasn’t anything that can be done that evening but the lights were safe to use.
On 24th December 2020 our client again reported to the council that the leaks were still active and were causing a considerable amount of damage to the ceiling and floors, however they did not send anybody out to inspect the issue.
Our client contacted the council multiple times via telephone and email over the next few months to no avail and by March 2021 the plasterwork on the ceilings and walls was starting to crumble, the floors were saturated and black mould was starting to form.
The council made no attempt to investigate or repair the leak therefore we took our clients instruction and gathered evidence of the correspondence between our clients and the council plus copies of the tenancy and appointed an expert surveyor to assess the property and report his findings.
Our expert surveyor reported that some of the main issues were but not limited to bulging and damage to ceilings, plasterwork, skirting boards and flooring, damp and black mould caused by numerous untreated leaks with contaminated water ingress originating from a broken waste pipe in the flat above.
We sent a detailed letter of claim to the freeholder setting out that they were in breach of express and implied terms of tenancy and/or breach of their statutory and common law duties by not adhering to the clauses outlined in the tenancy regarding the council’s responsibility for the maintenance and repairs of the structural integrity of the building.
We received a response from the councils solicitors who let us know that they had instructed their own surveyor to assess the property. The survey went ahead as planned and the other party’s expert agreed with our expert surveyor on all counts of disrepair.
We made an offer to settle out of court but our offer was rejected therefore we continued to prepare for a trial. A matter of weeks before the trial date the councils’ solicitors came back to us with an initial offer, we refused this offer as it was deemed below par but after a few more days of negotiations our client accepted a part 36 offer of £2,300 in damages with all repairs to be completed within 60 days and all legal fees covered by the other side.
Our client’s had up until the point of instruction lived with damp and mould for months and whilst getting their home returned to the state it should have been in was the priority the compensation that our client received for his stress and frustration came a close second.
For more information on how compensation is generally calculated, read our article on this subject: https://www.mjvlaw.co.uk/legal-news/housing-disrepair-compensation/
by Jane Willacey
Notice is often the point of dispute in a housing disrepair claim.
Disrepair
Part of the test to assess whether a potential client is likely to have a claim for housing disrepair is that their home is in a poor condition due to their landlord failing to undertake repairs that are their responsibility.
We will not go into this in any detail in this article as we will be writing in the near future on what is meant by disrepair and what type of issues typically fall under the landlord’s obligations.
Notice
The second part of the test is that the tenant has given their landlord sufficient notice. The disrepair or defect must be brought to their attention. If, having received notice of disrepair for which the landlord is responsible, they fail to carry out repairs within a reasonable time, you are likely to have a good claim for housing disrepair.
Without the notice, a landlord is likely to agree to undertake the repairs, but not compensate you for the inconvenience and distress their failure to act has caused.
Method
Most of our clients report issues with disrepair by telephone. While many landlords are very good at keeping records and record any such reports, many do not.
We are often instructed by clients a few years after they say they first reported a particular problem and so they cannot give much information as to the date that the issue was reported. If there is no record within the evidence the landlord discloses to us, it is much more difficult for a claim to succeed as it is necessary for a tenant to give a landlord notice.
As such, we recommend, whether you are intending to bring a claim or not, you should always report any disrepair by e-mail. You will then have a written record of the date and time of each report as well as the contents of each complaint. You can refer back to this for years to come.
Nobody knows whether their landlord will act responsibly for if they will fail in their duty towards them. As such, you should always proceed cautiously.
External Disrepair
It is not necessary for a tenant to report items of disrepair to the exterior of the property. These are discoverable without the landlord gaining entry to the property. However, where the external disrepair gives rise to internal problems (such as if there are issues with the pointing at the property allowing water to enter) then the issues affecting the inside must still be reported.
Constructive Notice
If there has been an inspection since an internal problem first showed, provide it was discoverable by the naked eye, the landlord can be considered to have constructive notice.
However, while a tenant may say that it was discoverable, landlords are likely to deny this and so deny that nootice has been served.
The Importance
A claim for housing disrepair compensation cannot succeed unless a tenant can prove that notice was given to the landlord.
The damages you receive will be calculated based on the period from the date a reasonable landlord would have completed the repairs having received notice. More can be found on how compensation is calculated here: https://www.mjvlaw.co.uk/legal-news/housing-disrepair-compensation/
Just in case you ever need to bring such a claim, always report issues by e-mail and always save those e-mails. You will, hopefully, never need them, but you will be glad you followed this advice if you do.
by Jane Willacey
We were instructed at the end of December 2021 by Mrs W from South London who had been experiencing ongoing disrepair within the council flat she shared with her two young children since 2007. We took her case on under a ’No Win No Fee’ agreement.
In the winter of 2007, our client noticed a slow leak coming from the ceiling of the master bedroom, our client reported this to the council several times over the period of a few months however our client didn’t receive a reply.
By the spring of 2008 black mould had started to form on the ceiling where the leak originated and the plaster work in this area had begun to crumble, again the disrepair was reported and this time our client received a reply, she was informed that an appointment had been made for a contractor to attend however they didn’t turn up to the appointment.
Our client attempted numerous times over a Fourteen year period to have her property repaired however all her requests were ignored
As soon as we took instruction, we sent a detailed letter of claim to the council setting out that they were in breach of express and implied terms of tenancy and/or breach of their statutory and common law duties.
The councils’ solicitors acknowledged our letter of claim and both parties arranged for the property to be inspected by our nominated expert surveyors. The surveyors reported that some of the main issues were but not limited to
Damp and mould found in the master bedroom which recorded a high damp meter reading.
Defective rendering, guttering and damage to drainage pipes which was the main cause of the initial slow leak and subsequent mould.
We made a part 36 offer to settle without the need for court proceedings, our first offer was rejected however the other party accepted a subsequent offer of £8590.00 in damages and repairs to be completed within 60 days plus all legal costs recovered from the other side.
Although the disrepair for this claim was small in comparison to most of our housing disrepair cases the amount of time that our client lived within a state of disrepair meant that she received a substantial amount of compensation and whilst getting her home back to a liveable state was the priority the damages that our client received came a close second.
For more information on how compensation is generally calculated, read our article on this subject: https://www.mjvlaw.co.uk/legal-news/housing-disrepair-compensation/
by Jane Willacey
We were instructed at the end of April 2022 by Mr H from North London who had been experiencing ongoing disrepair within his council owned flat since December 2017. We took his case on under a ’No Win No Fee’ agreement.
In the winter of 2017, our client noticed that mould was beginning to form on the walls and ceilings in the bedroom, bathroom and living room plus he was finding a large number of slugs within the property when the weather was cold and damp. Our client reported this to the council via phone and email a considerable number of times over a five-year period with no response from the council.
By the start of 2021 the damp and mould had become so bad that it had ruined all the soft furnishings within the property, carpets, bedding, and curtains to name just a few were saturated with damp and mould which had a negative impact on our clients physical and mental health.
As soon as we took instruction, we sent a detailed letter of claim to the council setting out that they were in breach of express and implied terms of tenancy and/or breach of their statutory and common law duties and we instructed an expert surveyor to assess the disrepair.
The surveyor reported that some of the main issues were but not limited to severely blocked guttering and drainage pipes, inadequate ventilation and blown seals on all windows and doors.
Some weeks later we received an acknowledgement of the letter of claim from the councils’ solicitors however they were reluctant to enter in to negotiations to commence repairs and settle out of court, therefore we issued court proceedings.
As the hearing date drew nearer we received a part 36 offer to settle out of court. The offer was lower than our valuation therefore we made a counter offer which in turn was rejected.
The judge ruled that the council were in breach of express and implied terms of tenancy and/or breach of their statutory and common law duties and awarded our client £3850 in compensation with all repairs to be made within 90 days.
Our client up until the point of instruction had lived with damp, mould and a slug infestation for four years which had caused him considerable distress and frustration and whilst getting his home back to a liveable state was the priority the compensation that our client received came a close second.
For more information on how compensation is generally calculated, read our article on this subject: https://www.mjvlaw.co.uk/legal-news/housing-disrepair-compensation/
by Jane Willacey
The Environmental Protection Act 1990 provides a valuable resource to housing disrepair lawyers who are not put off by having to utilise the Magistrates Court.
The majority of claims for housing disrepair are brought using Section 11 of the Landlord and Tenant Act 1985. This requires that the structure, service media and conveniences of the property are kept in a good and functional condition. These must decline in their state of repair from the date the property is let to the date the issue is reported to the landlord. If they are in a poor condition on the date the lease is signed, there is no requirement for the landlord to improve them.
Where the Environmental Protection Act 1990 is different, is that it enables tenants, occupiers and or their neighbours to bring criminal proceedings due to premises being a risk to health regardless of the condition they were in on the date any tenancy began.
This means that properties that are poorly designed or have inherent defects are caught by the legislation. A tenant in a property blighted by mould caused by inadequate ventilation is unlikely to have a claim under Section 11 of the Landlord and Tenant Act 1985 as it is likely that the poor ventilation would be considered a design flaw and not disrepair. This is a common occurrence in older properties that were designed at a time when the specifics of modern usage could not reasonably have been foreseen.
Claims brought under the Environmental Protection Act 1990 and its predecessor, the Public Health Act 1936, are primarily claims brought as statutory nuisances. A bad property is actionable if:
• it is in a state of repair which is prejudicial to health or a nuisance;
• there is an accumulation or deposit which is prejudicial to health or a nuisance;
• there are insects coming from an industrial, trade or business premises that could be prejudicial to health or a nuisance;
• a well, tank, cistern or other such water carry facility used for the supply of water for domestic purposes is in a condition that renders the water liable to contamination prejudicial to health;
• a pond or other such watercourse is so foul it is prejudicial to health or a nuisance; or
• noise coming from the premises is such that it is prejudicial to health or a nuisance.
The legislation is intended to have a wide catchment. It is intended to cover all land and vessels in the public or private sector. The premises need not even be occupied as it is their condition and not the manner in which they are used that determines a breach.
The key matter to prove is not that there is a defect, which will normally be apparent, but that it is such that it poses either a nuisance or it could be prejudicial to health. However, the matters caught by the legislation are those that are public health matters that are or could be injurious or likely to cause injury to health.
If you are a tenant living in a property blighted by poor conditions that you believe could cause an injury to you or someone else, it is important to obtain clear advice from lawyers familiar with the Environmental Protection Act 1990.
Not all cases can lead to a successful prosecution, but if a civil claim under Section 11 of the Landlord and Tenant Act 1985 is unavailable, it is important to explore the other options available and so it is vital to instruct a lawyer who is familiar with them.
If you are a social housing tenant who is struggling with disrepair, we may be able to help. Call us on 01253 858231 or email us at info@mjvlaw.co.uk
We were instructed at the end of December 2021 by Mrs W from South London who had been experiencing ongoing disrepair within the leasehold flat that she shared with her young family since 2008. We took her case on under a ’No Win No Fee’ agreement.
In the winter of 2008, our client reported to the freeholder that she had noticed a wet patch on the ceiling of the main bedroom which became progressively worse with each rainfall. The ceiling very quickly became plagued by black mould which subsequently spread to the walls and ceilings in the second bedroom and bathroom.
The disrepair was reported to the freeholder by both telephone and email on a weekly basis for over thirteen years however the freeholder made no attempt to investigate or fix the source of the leak.
By the end of 2021 the black mould and damp was so bad that our client was unable to use the three rooms affected, numerous clothing and soft furnishings had been damaged beyond repair, her children were suffering from constant respiratory infections and the whole family was having to sleep in the living room.
As soon as we took instruction we sent a detailed letter of claim to the council setting out that they were in breach of express and implied terms of tenancy and/or breach of their statutory and common law duties by not adhering to the clauses outlined in the lease regarding the freeholders responsibility for the maintenance and repairs of the building.
The freeholders’ solicitors replied to our letter of claim and both parties instructed expert surveyors who undertook their own separate inspections on the property. The experts reported that some of the main issues were but not limited to an Ingress of rainwater in multiple locations from a defective drainage system causing severe damage to ceilings and walls throughout the property plus high levels of humidity, damp and toxic black mould.
The freeholders nominated experts report agreed with our surveyors findings therefore the other party made a part 36 offer to settle out of court, this offer was well below par as were all subsequent offers made at this time therefore, we rejected the offers on behalf of our client and issued court proceedings.
As the hearing date drew closer the other party’s solicitor contacted us with another part 36 offer to settle out of court. The offer that was put forward was still below par but included all repairs to be completed within 120 days. We rejected this offer and made a counteroffer of £10,000.00 in damages plus all repairs to be completed within a much shorter time frame. Our client accepted the offer.
Our client had up until the point of instruction lived with damp and toxic black mould for thirteen years which had caused herself and her young family both mental and physical distress and whilst getting her home back to a live able state was the priority the compensation that our client received came a close second.
For more information on how compensation is generally calculated, read our article on this subject: https://www.mjvlaw.co.uk/legal-news/housing-disrepair-compensation/
by Jane Willacey
We are often asked by clients how much compensation they will receive if their claim succeeds.
Unlike personal injury claims, where the Judicial College Guidelines serve as a guide, there is no such tool in housing disrepair claims.
General Damages / Compensation
General damages are more commonly referred to as compensation. They serve to compensate the tenant for the inconvenience, discomfort and distressed caused to them through their landlord’s breach of their repairing obligations.
The most commonly used method of assessing damages is as a reduction in the rental value of the property.
Take a property was comprised of 2 bedrooms, 1 bathroom, 1 living room and 1 kitchen. If it was let for £100 per week and the disrepair complained of materially affected 1 of the bedrooms, the bathroom and the living room, it would affect 50% of the rooms. Using a very simplistic approach, that would mean the compensation would be £50 per week, being half of the £100 per week rent.
This is paid for the period from when a reasonable landlord would have completed the repairs to the date the landlord of our client did so.
If, in this example, the landlord undertook the repairs 50 weeks after they should have, the tenant would receive compensation of £2,500.
Special Damages
Special damages can be considered your out of pocket expenses. You are entitled to recover any money that you have paid as a result of the problems for which your landlord was responsible.
There is no finite list of these, but you must be able to prove your loss and so receipts should always be kept.
Examples of Special Damages in Housing Disrepair Claims
Cleaning costs;
Loss of earnings (such as if you have had to take time off work to meet the landlord’s agents and they have not attended the appointment);
Additional heating costs or the costs of a dehumidifier when trying to dry out the property;
The cost of alternative accommodation if your property was uninhabitable for any time;
The cost of repair, cleaning and redecoration (provided these are costs incurred personally and the work was not undertaken at the landlord’s expense);
Travel costs;
Medical costs;
The cost of dining out (such as if food storage or cooking facilities have been damaged).
by Jane Willacey
Withholding Rent
Many of our clients ask us whether they are entitled to withhold rent if heir landlord fails to undertake repairs. Given that compensation is normally calculated as a reduction in rent, this may seem reasonable. However, you should not withhold rent and should continue to pay in full.
Tenancy Agreement
The tenancy agreement requires you to pay the rent on a certain date. If you do not, you risk being evicted. Whether the court would grant an eviction would depend on the amount of arrears. If it is more than 2 months’ or 8 weeks’ rent, the Court has no discretion to refuse the request.
The agreement also requires a landlord to comply with their repairing obligations. It may seem unfair that you need to pay the rent in full. However, compensation in a housing disrepair claim is intended to be compensation for paying more rent than you should have for a property in disrepair.
If you do not pay your full rent, you will accrue arrears. It may be that your tenancy agreement provides for your landlord being entitled to recover interest on those arrears meaning that you will pay even more rent than you otherwise would.
If your landlord takes legal action against you, they have a right to claim interest. Any Claimant in a County Court claim is. This is provided by Section 69 of the County Courts Act 1984. They are entitled to claim 8% of any monies owed as part of the claim.
If they do issue court proceedings, they are also entitled to recover their costs. If the claim is for less than £10,000 the costs will be limited to small claims costs of no more than £100. However, they are entitled to claim their court fees as well. These will be several hundreds of pounds. The exact amount will depend on the amount involved and whether a hearing is required.
While it is not certain that landlords would take such action, they may. They are entitled to do so and so it is not a risk we advise tenants to take.
Compensation
Even if your landlord does not evict or sue you, you would not receive the full amount of compensation if you were to withhold rent and subsequently settle your housing disrepair claim.
It is established that landlords can deduct the damages from the arrears due.
It is rare for a tenant to be awarded a 100% rent reduction as damages. Our experience suggests that the average is 20-40%. As such, if you withhold your full rent, it is possible that you would not receive any compensation and would remain in arrears after the claim settled. This would mean that the treat of eviction and or being sued would remain until you had paid the arrears.
Claims
If you are a tenant in a housing association or council property and your landlord has not completed repairs you have reported, we may be able to help.
Call us on 01253 858231 or e-mail info@mjvlaw.co.uk
by Jane Willacey
It may surprise you to hear this , but you do not need to instruct a solicitor to bring a housing disrepair claim. But, the court will hold you to the same standard they expect from a lawyer if you make the claim yourself.
We always advise potential clients to engage our services or those of other solicitors who specialise in bringing housing disrepair claims. We are aware of all the tactics, tricks and strategies that Landlords are likely to employ. Crucially, we are also aware of how to defeat them.
What do I need to know?
The process that you must follow is prescribed by the Pre-Action Protocol for Housing Disrepair Claims. It can be found here: https://www.justice.gov.uk/courts/procedure-rules/civil/protocol/prot_hou
If you fail to comply with the Protocol you face the prospect of making a successful claim, but failing to recover costs and expenses and so it is essential that you follow it closely.
What does the Protocol say?
If you are thinking of making a claim, we urge you to read and understand the document before you do anything. This article is intended to be a summary guide only and so should not be relied upon instead of reading the Protocol.
The main parts of the Protocol for you to understand are:
You must send a letter of claim. This must contain your details along with those of the property and the disrepair complained of. You must explain the history of the problem and include when you first reported it to your Landlord and how. The letter must nominate a suitably qualified surveyor to inspect the property and enclose a draft letter of instruction. You should also request sight of all documents you wish to see that you believe may support your claim, such as the repair log.
You must allow 20 working days from the deemed date of service of the letter of claim. The deemed date of service is the second working day after you sent the letter by first class post. If you send it on a Friday, the deemed date of service is the Tuesday. Do not forget to allow for any bank holidays when calculating the date the response is due.
Landlords typically respond to acknowledge the claim before providing requested documents and a response regarding the instruction of a surveyor. Usually, the response is one of the following:
They agree to the joint instruction of a single expert on behalf of both parties;
They do not agree to a joint instruction, but agree to a joint inspection;
They do not believe a third party surveyor should be instructed and, instead, feel that their own in-house surveyor should inspect the property;
They deny the claim and so do not believe any surveyor should be instructed; or
They fail to respond at all.
You are then required to arrange for the surveyor(s) to undertake an inspection of your property and provide an expert witness report. You must ensure that the report complies with the requirements of Part 35 of the Civil Procedure Rules, which can be found here: https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part35
You will, in most circumstances, need to pay for the surveyor’s report and the cost is likely to range from around £500 to £1,500 plus VAT. You can proceed without a report, but doing so is extremely risky and your claim would be likely to fail;
Once you are in receipt of the report, you should serve a copy on your landlord and allow them a reasonable time to consider it. They should respond to confirm whether they admit or deny the disrepair. It is common, if they make any admissions, for them to provide a Schedule of Works.
If you are satisfied with their response, you should seek to negotiate damages. If you are not, you may wish to issue court proceedings. These, like the surveyor’s reports, are expensive and you would need to pay these before you could proceed unless you are entitled to a fee remission. The court fees are here: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/728146/ex50a-eng.pdf Details on fee remissions are here: https://www.gov.uk/get-help-with-court-fees
Damages
We call compensation, damages. There are two types, general and special.
General Damages
General damages are those awarded for non-tangible things such as inconvenience or pain, suffering and loss of amenity. In housing disrepair claims, general damages are awarded for you having had to live in poor conditions for the period from when repairs should have been completed to when they were. They are normally calculated as percentage reduction in rent whether you pay the rent or receive benefits. The more significant the impact the disrepair has had on your home, the higher the percentage.
Special Damages
Special damages are your out of pocket expenses. In housing disrepair claims, they are normally things like:
The cost of decorating that would not have been required but for the disrepair;
Replacing property damaged because of the disrepair;
The cost of alternative accommodation;
The cost of prescriptions or pain killers due to illness or injury caused or contributed to by the disrepair; and
The cost of travel to any medical appointments or to attend your landlord’s property to complain.
So what does a lawyer do?
At MJV Solicitors, we believe we add value for our clients. We provide expertise, skill and experience that makes making a claim for housing disrepair much easier for you. We act on a no win no fee basis and the surveyor’s report and court fees are included so you have nothing to pay unless your claim succeeds. If you do win your claim, we take a success fee of no more than 25% including VAT from your general damages and you will also pay the cost of an after the event insurance policy. This policy covers your costs if you lose your case and so provides protection that is necessary. If you do lose, you pay nothing provided you comply with the terms and conditions. These are not onerous. If you cooperate with us and tell the truth, you will comply.
If you believe you may have a housing disrepair claim why not contact us to discuss how we can help take the stress out of it for you. Call 01253 858231 or e-mail info@mjvlaw.co.uk
