Disrepair remedies for private tenants

A private tenant’s options to deal with disrepair, including legal action.

This content applies to England

Appointment of a manager

If a landlord persistently neglects their duties to carry out repairs, a tenant or group of tenants could seek the appointment of a manager or receiver to manage the property in place of the landlord.

The role of the manager is to accept rent from tenants in place of the landlord. This rental income can then be used to pay for repairs.

If the cost of repairs is greater than the rental income, the difference cannot be recovered from the landlord:[1]

  • where premises (or the part of the premises subject to the application) contain at least two flats, then one or more of the tenants may apply to the county court for a manager to be appointed to manage the premises.[2] The tenant must notify the landlord of her/his intention to make the application to the court

  • in cases where the above conditions are not met (such as houses or single flats), it may be possible to apply to the High Court to appoint a 'receiver' in cases of extreme neglect of the landlord's repairing obligations[3]

In both the above cases, it is necessary to demonstrate to the court that the breach has occurred and that it is likely to reoccur if the receiver/manager is not appointed. It could therefore be a useful remedy in cases of extreme neglect, absent landlords or in situations where the landlord might be trying to use disrepair as a means of trying to get the tenant to leave.

The receiver is likely to be a solicitor, accountant, surveyor or other professional and the tenant can put forward a suitable candidate at the hearing.

Giving up a furnished property not fit for habitation

If a property is let furnished and is not fit for human habitation at the time it is let, the tenant can give up the tenancy and is not liable for rent.[4]

In this situation, the tenant must leave before paying any rent because any payments are treated as an acceptance of the condition of the property, and the contract. For example, a weekly periodic tenant must leave before the end of the seven-day period covered by the rent.

If rent in advance has been paid before moving in, the landlord may try to argue that this constitutes an acceptance of the unfitness; however it should be argued that this cannot be the case where the tenant did not see the property in advance or where the problem was not easily visible.

Reduction in fair rent for regulated tenants

A regulated tenant with a fair rent can apply for a reduction in the registered rent if there has been a substantial deterioration in the condition of the property.[5]

Complaining to a redress scheme

If a letting agent fails to respond adequately to a request for disrepair to be remedied, the tenant can complain to the redress scheme the agency belongs to.

Retaliatory eviction

When advising private tenants on taking action on disrepair, it is important to check the tenant's tenancy status. It is usually straightforward for a landlord to evict a tenant with limited security of tenure, and some landlords may choose to evict a tenant who takes action on disrepair rather than carry out the necessary repairs.

For assured shorthold tenancies granted in England on or after 1 October 2015 only, there are restrictions on when a landlord can serve a valid section 21 notice after the tenant has complained in writing about the conditions of the property and the local authority has served a 'relevant notice' on the landlord.

County court action

The tenant can sue the landlord in the county court for breach of contract if they have not met their repairing obligations, or for failure to meet their liabilities.

The outcome is usually damages to compensate for the disrepair and/or injunctions and/or orders to compel the landlord to do the necessary work.

Court action should generally only be considered as a last resort because it can be costly and time consuming.

Gathering information before going to court

Before going to court, it is important to gather together enough information to prove the case. This is likely to include:

  • proof of when the landlord was notified of the disrepair and related correspondence

  • photographs of the disrepair and of any damage caused to personal belongings

  • any evidence available from experts (eg surveyors, environmental health officers)

  • the tenancy agreement and other documents relating to the tenancy

  • any relevant medical reports detailing the effects of the bad housing conditions on the health or stress levels of the occupants

  • details of any costs incurred as a result of the disrepair

Agreement to carry out the repair works and give compensation

A tenant could use court action to negotiate an agreement with the landlord to carry out the repair works and give compensation. This agreement can be formalised in a court order making the landlord's offer an 'undertaking to the court'.

Breach of the undertaking can result in a fine and a direction that the works be done and paid for by the landlord,[6] or can result in imprisonment.[7]

Claims for damages for disrepair

Damages can be awarded in addition to orders for specific performance and mandatory injunctions.

The purpose of damages is to place the tenant (financially) in the position that they would have been in if they had not suffered the breach of contract or the breach of duty.[8] Damages therefore compensate for loss, stress and injury but do not usually serve to punish the landlord for their breach.

Types of damages

There are three types of damages that can be given in disrepair cases. All of those that apply are awarded:

  • general damages are assessed to cover the loss from inconvenience and loss of enjoyment caused by the disrepair

  • special damages cover the loss in value of belongings that are destroyed or damaged, such as carpets, furniture and curtains. Special damages may also cover costs for cleaning, heating, alternative accommodation and costs for other specific items that have been incurred by the tenant. A claim for special damages must specifically state the items for which the damages are sought

  • aggravated or exemplary damages for actions in tort. (Aggravated damages are additional damages that the court may award as compensation for the defendant's objectionable behaviour.) It is only likely to be possible to obtain these in very bad cases, for example where there is an element of harassment.[9] Unlike general and special damages, the purpose of exemplary damages is to punish or deter the landlord

Amount of damages

The assessment of damages is made by looking at the individual circumstances of each case.

The court usually takes into account the rent payable when determining the loss suffered by the tenant, although if the amount produced by this method would be inadequate compensation it can make a more general ('global') award.[10] An award of damages that exceeds the rent payable for the period of the disrepair is not usually made.[11]

The amount of damages for a breach of contract may be reduced if the tenant unreasonably failed to mitigate the loss, that is failed to act to lessen or prevent damage, for example they delayed giving notice to the landlord or regularly refused access so that the disrepair, and its consequences, were greater than it would otherwise have been.[12]

In a leaseholder's claim for damages (but the same principle seems to be applicable to tenants) against his landlord for breach of covenants to maintain in good repair the common parts and insure the building, the Court of Appeal held that as the loss to him laid in the impairment of the amenity value of his proprietary interest in his flat, of which discomfort, inconvenience and distress were only symptoms, the fact that during the period of disrepair he had chosen to live elsewhere for reasons unconnected with the state of his flat was not fatal to his claim, although it was still relevant to the quantification of his award of damages.[13]

Although not a repair case the High Court court found that the failure of the landlord to take reasonable steps to minimise disturbance while undertaking redevelopment works amounted to a breach of the tenant's covenant of quiet enjoyment and awarded damages to the tenant. In this case the works were carried out solely for the landlord's benefit, and this was taken into account by the court in considering the reasonableness of the landlord's actions.[14]

As disrepair cases often take a long time to come to court, it is usually also appropriate to request interest on the amount of damages awarded.[15]

Time limits for action against disrepair

The general time limit is six years from the date the tenant got the right to take action, except the personal injury cases with the limit of three years.

Action for breach of contract

Action can be taken at any time after the landlord has been notified of the disrepair and failed to remedy it within a reasonable time, until six years after the disrepair has been rectified.[16]

Actions in tort (except personal injury)

Actions under section 4 of the Defective Premises Act 1972, in nuisance and in negligence, are all actions in tort.

Action can be taken at any time after the damage to property or injury occurred until six years after the event.[17] If the injury or damage was not discovered immediately then there is a further three years in which to claim, from the date on which the tenant discovered or could have discovered it.[18] The maximum time from the date of the defect to the making of the claim is 15 years.[19]

Personal injury

The time limit starts running from the date of the injury or the date the person injured had 'knowledge' that they could make a claim. The applicable limit is three years, although the court has discretion to waive the time limit.[20]

Actions under section 1 of the Defective Premises Act 1972

Actions can be taken within six years of the completion of the work.[21]

Last updated: 19 March 2021

Footnotes

  • [1]

    Evans v Clayhope Properties Ltd (1988) 20 HLR 176.

  • [2]

    Part 2 Landlord and Tenant Act 1987.

  • [3]

    s.37 Supreme Courts Act 1981.

  • [4]

    Wilson v Finch-Hatton [1887] 2 Ex D 336.

  • [5]

    s.67(3)(a) Rent Act 1977.

  • [6]

    s.38 County Courts Act 1984; Gandolfo v Gandolfo [1980] 1 All ER 833.

  • [7]

    CCR Order 29, Sch.2 Civil Procedure Rules.

  • [8]

    Calabar Properties Ltd v Stitcher [1983] 3 All ER 759, CA.

  • [9]

    Guppys (Bridport) Ltd v Brookling [1983] 269 EG 846.

  • [10]

    Wallace v Manchester CC (1998) 30 HLR 1111, CA.

  • [11]

    English Churches Housing Group v Shine [2004] EWCA Civ 434.

  • [12]

    See Anselm v Buckle [2014] EWCA Civ 311 for discussion of principles around mitigation of loss in a commercial lease case.

  • [13]

    Moorjani v Durban Estate Ltd [2015] EWCA Civ 1252.

  • [14]

    Timothy Taylor Ltd v Mayfair House Corporation & Anor [2016] EWHC 1075 (Ch) .

  • [15]

    s.69 County Courts Act 1984 .

  • [16]

    s.5 Limitation Act 1980.

  • [17]

    s.2 Limitation Act 1980.

  • [18]

    s.25A Limitation Act 1980.

  • [19]

    s.25B Limitation Act 1980.

  • [20]

    ss.11(4) and 33 Limitation Act 1980.

  • [21]

    s.1(5) Defective Premises Act 1972.