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Factors to be considered

This content applies to England & Wales

What advisers should check before advising their clients about taking action on disrepair.

Checklist

Before beginning any course of action, tenants should always attempt to negotiate with the landlord. Advisers should also check:

  • that tenants with limited security of tenure have considered the risk of eviction
  • that the landlord is liable to do the repair
  • that the tenant has given notice to the landlord of the disrepair and that the landlord has failed to carry out the repairs within a reasonable time
  • whether the tenant has sufficient income to finance court action, or is entitled to help with costs (see the sections on Costs and Civil legal aid for more information)
  • that the pre-action protocol has been followed if considering court action (see below).

Checking security of tenure

It is essential to check the tenant's status, particularly if s/he is renting privately. A tenant who is not an assured, regulated or secure tenant risks eviction if s/he seeks to take action for disrepair because the landlord does not have to prove a ground for eviction. In some cases, the risk of eviction may be greater than the risks posed by the disrepair. See the Security of tenure section for information on checking tenure status.

Retaliatory eviction

Restrictions are placed on the service of a valid section 21 notice to end an assured shorthold tenancy (AST) when a landlord has served the notice following a written complaint from the tenant about the condition of the property and the local authority has served a 'relevant notice'. This restriction only applies to ASTs granted in England on or after 1 October 2015. For details see Restrictions on use of section 21.

Checking liability

In most cases, landlords will be liable under one or more of the following:

  • section 11 of the Landlord and Tenant Act 1985 (implied term)
  • another contractual term (ie an express term in the tenancy agreement)
  • liability arising from the torts of negligence or nuisance
  • the Defective Premises Act 1972.

Note: a landlord is not liable to carry out any repair until s/he has been put on notice of the need for repair - see below. This does not apply to Non-contractual rights (ie for negligence or nuisance, or under the Defective Premises Act).

Advisers should always check whether the tenancy agreement gives the tenant extra rights, bearing in mind that statutory rights will apply regardless of what the tenancy agreement says. See the section Contractual rights including section 11 for more information.

Checking that notice has been given and time allowed

If the landlord's liability for disrepair arises under a statutory implied term or an express term, the landlord must have been notified of the disrepair and have failed to carry out the repair within a reasonable time thereafter before any further action can be taken.[1]

It is always advisable to notify the landlord in writing and to keep copies of all correspondence relating to the disrepair. It is the landlord's knowledge of the defect that is important and it is not always necessary for the tenant to have given notice for the landlord to be considered liable. For full details see the page on Notice requirement.

Landlords must be given a reasonable amount of time to comply with their obligations. What is reasonable will depend on the nature of the disrepair (see the sections on contractual rights and Problems during repairs for information).

Using the Pre-action Protocol for Disrepair Cases

There is a pre-action protocol for all residential housing disrepair cases. It outlines the procedure and timetable that the parties to a case must take before starting a claim. Courts expect parties to avoid unnecessary litigation by complying with the terms of protocols, and may penalise a party that fails to do so by ordering them to pay more of the costs of the proceedings and/or other sanctions.[2] See the page on Pre-action Protocol for Disrepair Cases for more information.

If the case also involves a claim for personal injury, the Letter of Claim must state that this is the case and the claimant will also need to comply with the separate Pre-Action Protocol for Personal Injury Claims.[3]

[1] Makin v Watkinson [1870] LR 6 Ex 25; O'Brien v Robinson [1973] AC 912; Morris v Liverpool (1987) 20 HLR 498; Earle v Charalambous [2006] EWCA Civ 1090.

[2] para 1.3 Pre-action Protocol for Housing Disrepair Cases.

[3] para 3.5 Pre-action Protocol for Housing Disrepair Cases.

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