Advising tenants about taking action over disrepair

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

Advisers should check:

• the occupier's security of tenure

• that the landlord is liable to do the repair

• if 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

• whether the pre-action protocol has been followed if considering court action

An occupier's security of tenure might impact their options to challenge disrepair.

Retaliatory eviction

An assured shorthold tenant can be evicted on no fault grounds using a section 21 notice. This means that an assured shorthold tenant who complains about disrepair could be at risk of eviction.

A section 21 notice might not be valid where:

• the tenant has made a written complaint about the condition of the property

• the local authority has served a relevant notice on the landlord

Find out more about what makes a section 21 notice invalid.

Hazards in social housing

A social landlord must investigate and resolve emergency hazard and significant damp and mould hazards within specific timeframes. This is known as Awaab's law.

Find out more about hazards in social housing on Shelter Legal.

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

• section 11 of the Landlord and Tenant Act 1985 (implied term)

• fitness for human habitation (implied term)

• the rules on hazards in social housing, known as Awaab's law

• express contractual term

• liability arising from the torts of negligence or nuisance

• the Defective Premises Act 1972

Advisers should always check if the tenancy agreement gives the tenant extra rights. Statutory rights apply regardless of what the tenancy agreement says.

The tenant might need to notify their landlord of the disrepair problem. Find out more about the requirement to notify landlords about disrepair on Shelter Legal.

Where the landlord's liability for disrepair arises under a statutory implied term or an express term, the landlord: [1]

• must have been notified of the disrepair

• have failed to carry out the repair within a reasonable time before any further action can be taken

Tenants should notify their 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.

Find out more about the requirement to notify landlords about disrepair on Shelter Legal.

Landlords must be given a reasonable amount of time to comply with their obligations. What is reasonable depends on the nature of the disrepair.

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]

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