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Although living conditions in England and Wales have vastly improved over the past one hundred years, it is a sad fact that despite that improvement hundreds of thousands of rented homes presently suffer from significant disrepair, including damp, water penetration, leaking pipes and sewerage, defective central heating, damaged or exposed wiring, wet and dry rot, and insecure windows and doors.
Living with disrepair is often very unpleasant and sometimes injurious to health. 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).
In many cases disrepair will be addressed by the tenant simply telling the landlord about the problem and allowing access to the landlord for works to be carried out. Where 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. Section 11 of the Landlord and Tenant Act 1985 is one of the main ways in which a repairing obligation is imposed upon landlords. Although that provision does not require the landlord to improve the property or to remedy inherent design defects, it does require the landlord to keep in repair:
• The structure and exterior of the home (e.g., 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.
Although section 11 is one of the main ways in which a repairing obligation is imposed on landlords, there are other ways.
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.
Once there is evidence that the property 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, telephone records).
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.
The amount of damages awarded to a tenant who has experienced disrepair will depend upon the extent of the disrepair, the length of time that the home has been in disrepair, the cost of replacing any belongings damaged by the disrepair, and the amount of any expenses reasonably incurred by the disrepair (for example, higher heating bills or additional cleaning materials).
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 as a result of the order. Although it can take many months for a housing disrepair claim to reach trial, in the majority of cases landlords (even those who were previously reluctant) carry out repairs in order to minimise the amount they will have to pay in damages.
There are a number of 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 funded by way of legal expenses insurance or a conditional fee agreement.