This page is targeted at housing professionals. Our main site is at www.shelter.org.uk

Orders for specific performance

This content applies to England & Wales

The purpose of court proceedings by means of an 'order for specific performance' or, for non-contractual issues, a 'mandatory injunction'.

Court proceedings

The main purpose of court proceedings will often be to make the landlord do the work s/he is responsible for. This can be done by means of an 'order for specific performance' or, for non-contractual issues, a 'mandatory injunction'.

As part of court proceedings for damages for breach of contract, a tenant can ask for a mandatory injunction, or an order for specific performance, which will order the landlord to do the repair that s/he has failed to do.[1] This right can also be used for disrepair for common parts to a property where the landlord is in breach of an obligation. It can be exercised by subtenants and statutory tenants.

The decision to make an order is at the discretion of the court. An order will not, however, be refused on the grounds that the tenant is her/himself in breach of another part of the contract, eg in rent arrears.[2] A mandatory injunction can also be used to impose the duty in section 4 of the Defective Premises Act 1972 (see the page on Defective Premises Act 1972 in the section on Liability for disrepair).[3]

If the application for an order or injunction is unsuccessful or likely to be ineffective then a tenant may seek a 'declaration' by the court that s/he can carry out the repairs her/himself and deduct the cost of them from future rent. The declaration can also state that the tenant would not be in breach of any terms of the tenancy agreement that specifically prevent such action.

A landlord who does not carry out the works specified in an injunction may be in contempt of court. The penalty for this could be a fine or imprisonment.[4]

Urgent action

If the disrepair is so severe that it causes serious and continuing interference with the tenant's enjoyment of the property, then the tenant can seek an interim or 'interlocutory' injunction to prevent the risk of further damage or danger. For example, interim/interlocutory injunctions have been granted to secure the proper working of a lift[5] and to restore space heating and hot-water supplies to the homes of tenants after a strike by maintenance engineers had led to a backlog of disrepair.[6] An application for an interim injunction has the advantage that it can be brought to court quickly.

Interim/interlocutory injunctions are given at the discretion of the court in exceptional cases. To obtain the injunction, the tenant will need to demonstrate:

  • the seriousness of the matter to be decided and that there is immediate major discomfort and the probability of further serious harm to person or property
  • that damages would be insufficient compensation for the harm likely to be suffered
  • that s/he would be able to afford the costs of the repair works if it is later decided that the injunction should not have been made
  • that the hardship of the tenant in living with the disrepair is greater than that of the landlord in having to perform the works
  • that an order would be sufficiently clear so that the landlord would know what works are required and by what date.

A tenant will usually need expert evidence to support her/his claim. This could include the report of a surveyor or environmental health officer and, where appropriate, medical reports. An order may be refused if the tenant is in breach of the tenancy agreement, for example by accruing rent arrears.

[1] s.17 Landlord and Tenant Act 1985.

[2] s.17 Landlord and Tenant Act 1985.

[3] Barrett v Lounova (1982) Ltd (1988) 20 HLR 584, CA.

[4] CCR Order 29, Sch.2 Civil Procedure Rules.

[5] Maritime v Padseal [1981] 259 EG 860, CA.

[6] Parker v Camden LBC (1985) 17 HLR 380.

Back to top