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Access and displacement

This content applies to England & Wales

Regulations concerning tenants giving access and/or moving out of the property to allow repair work to be done. A tenant's rights if only part of the property becomes unusable during repair work.

At common law, any repairing obligation by a landlord carries with it an implied obligation by the tenant to give access to the landlord in order for those repairs to be carried out,[1] so long as reasonable notice is given.[2] This can include the tenant having to move out of the property in situations where the repair work requires it. If a tenant denies the landlord access to carry out necessary repairs, s/he would be in breach of the tenancy agreement and could be putting her/himself at risk of possession proceedings.

Landlord carrying out repairing obligations

A landlord who is seeking to meet repairing obligations is under no obligation to provide alternative accommodation.

Where the repairing obligation is being met the tenant must co-operate. A landlord can apply to the courts for an order allowing her/him access to carry out repairs (but not improvements). In one case,[3] the court held that the tenant was not obliged to give the landlord exclusive occupation unless it was essential in order to do the repairs. If exclusive occupation is not essential, the landlord must either do the work one room at a time in order to accommodate the tenant or provide alternative accommodation.

Should access to the whole of the property be required to meet the repairing obligation, the tenant needs to negotiate with the landlord concerning suspension of rent payments, expenses, the duration of works and continued security of tenure despite the absence.[4]

For assured and assured shorthold tenants, a landlord may be able to gain possession under ground 6 (mandatory) to carry out substantial works that cannot reasonably be carried out without the tenant giving up possession - see the assured tenancies' - introduction to grounds for possession page for more information. Note that this ground cannot be used by a landlord who had bought the property after the tenancy began.

Similarly, under the Housing Act 1985 a landlord may be able to gain possession of a secure tenancy under ground 10 (discretionary) where vacant possession is required during substantial works and the tenant declines to move. Suitable alternative accommodation must be made available to the tenant - see the page Definitions of reasonable and suitable alternative accommodation for more information. Local authority and housing association tenants may be able to use tenants' associations to negotiate with the landlord concerning arrangements during repairs works.

Landlord in breach of repairing obligations

If the tenant is required to move out, whether temporarily while repair works are undertaken, or because before works start the conditions are sufficiently serious, then the costs of removal or alternative accommodation can be recovered as 'special damages'. This means that, if the disrepair and the failure to meet the repairing obligation renders the premises uninhabitable, the tenant may recover as damages (compensation) any expense reasonably incurred in occupying alternative accommodation from the date the premises could not longer be occupied up to the date of assessment or repair.[5] The tenant may also be able to claim general damages for the inconvenience of having to obtain and occupy alternative accommodation.[6]

Vacant possession for improvement works

Landlords cannot insist on a tenant moving out to do improvement works. Unlike for repair works, a landlord cannot apply to the courts for an order to gain access to the property to carry out improvements. The situation will be governed by the terms of letting or any further agreement that the landlord and tenant have entered into.[7] If a tenant agrees to move out for a period of time, it is important to consider the implications for the tenant's security of tenure and ensure that the tenant retains the right to move back in on completion of the work.

Landlords of secure and assured tenants may be able to gain possession under the discretionary grounds mentioned above (10 and 6 respectively) to carry out substantial improvements or reconstruction work that cannot be done without the tenant moving out.

Displacement from part of property

If some rooms of the property are uninhabitable during repair work, the tenant may be entitled to an abatement (a reduction or refund) of her/his rent. The amount of rent abatement that can be claimed depends on the proportion of the property that is uninhabitable (ie if half the property is uninhabitable, the tenant may be able to claim an abatement of 50 per cent of the rent). As with any damages claim for repair work, the courts look at the diminution of the value of the property against the overall rent, in addition to other general damages relating to inconvenience and distress etc.[8] It is possible to claim retrospectively, after the repair work has been done. If the landlord refuses to reduce the rent, the tenant may be entitled to withhold a proportion of her/his rent, or s/he may be able to claim compensation through the courts.

[1] Saner v Bilton [1878] 7 Ch D 815.

[2] Granada Theatres v Freehold Investment (Leytonstone) Ltd [1959] Ch 592.

[3] McGreal v Wake (1984) 13 HLR 107, CA.

[4] Francis v (1) Brent Housing Partnership Ltd (2) Brent LBC (3) Williams [2013] EWCA Civ 912.

[5] Calabar Properties Ltd v Stitcher (1984) 11 HLR 20, CA.

[6] Lubren v Lambeth LBC (1987) 20 HLR 169.

[7] McDougall v Easington DC [1989] 1 EGLR 93.

[8] McCoy v Clarke (1982) 13 HLR 890.

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