Legal remedies for disrepair overview
The ways for tenants, landlords and public authorities to obtain remedies for disrepair under contract, tort, or statute.
The three main sources of remedies for disrepair
There is no single, comprehensive source for remedies for disrepair. Instead there are three main sources:
Contract is concerned with the express and implied terms of the tenancy agreement.
Tort is a civil wrong, which is not a breach of contract. Tort is based mainly on common law principles, for example negligence, trespass or nuisance.
Statute is different from tort and contract because it comes from Acts of Parliament.
create a criminal offence (for example under the Environmental Protection Act 1990)
be a source of tort (for example section 4 of the Defective Premises Act 1972)
be a source of an implied term of a tenancy agreement (for example section 11 of the Landlord and Tenant Act 1985)
The occupier's status needs to be known before any remedy can be used.
An occupier who is not an assured, regulated or secure tenant may risk eviction if they enforce their rights to repair. The landlord may respond by serving a notice and subsequently, if required, by obtaining a possession order.
Retaliatory eviction and section 21 notice
With effect from 1 October 2015 and in respect of assured shorthold tenancies granted in England on or after that date 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.
Tort and contract remedies
The remedies that relate to contract and tort are civil and can be used only at the instance of the tenant. Thus it is the tenant who seeks compensation if the landlord, for example, does not fulfil their repairing obligations under section 11 of the Landlord and Tenant Act 1985 or breaches section 4 of the Defective Premises Act 1972.
Such action, whether for breach of contract or for a tort, is usually in the county court.
Tenant's notice of the defect
A significant difference between contract and tort is the requirement for notice by the tenant.
For the tenant to exercise their rights under the contract they need to give prior notice to the landlord: a remedy can only be sought if this has been given.
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.
There is no notice requirement in tort. The landlord's liability arises if negligence has arisen and the problem has been reasonably foreseeable, or if there is a breach of duty under the Defective Premises Act 1972. Tenants can also take action under section 82 of the Environmental Protection Act 1990.
Local authority action for disrepair
The remedies found in the main statutes – the Housing Act 2004 and the Environmental Protection Act 1990 – are used by the local authority to take action against private landlords and private registered providers of social housing. They are therefore public, not individual (or private), remedies. They are in addition to remedies that a tenant can enforce themselves.
Part 1 of the Housing Act 2004 introduced the Housing Health and Safety Rating system (HHSRS) for assessing housing conditions. The 2004 Act gives local authorities extensive powers to intervene where they consider housing conditions to be unacceptable, on the basis of the impact of health and safety hazards on the most vulnerable potential occupant. Under the 2004 Act, a local authority effectively has a duty to inspect a property following a complaint by a tenant, or their representative, that a hazard may exist on the premises.
The 2004 Act puts authorities under a general duty to take appropriate action in relation to a 'Category 1 hazard'. Appropriate action could be an Improvement Notice, a Prohibition Order, a Hazard Awareness Notice, a Demolition Order or declaring a Clearance Area. It is for the local authority to decide which course of action is the best in the circumstances. The local authority has the power to act in relation to a 'Category 2 hazard'.
Under the Environmental Protection Act 1990, a local authority has a duty to 'take such steps as are reasonably practicable to investigate complaints' of statutory nuisance by tenants and other people living in the area. If the local authority finds the existence, or likelihood, of a statutory nuisance then it has a duty to take action.
In certain circumstances the statutory authority that acts is not the local authority. For example, the fire brigade takes action in cases relating to fire safety.
Methods of taking action
There are different options for a tenant to take action against disrepair. Use of these methods may result in problems such as a poor standard of work or the tenant having to move out of the property while the work is carried out.
Local authorities can take action to deal with statutory nuisance.
Bad conditions in houses in multiple occupation can also be dealt with in specific ways.
In some situations remedies can overlap, which means that a case of disrepair can often be dealt with in more than one way. For example, an assured tenant who lives in a damp property which the landlord has failed to repair could take action for breach of section 11 of the Landlord and Tenant Act 1985.
At the same time the local authority could take action for statutory nuisance under the Environmental Protection Act 1990 and for a hazard under the Housing Act 2004. Gaps exist in other areas, which mean that, sometimes surprisingly, no action can be taken.
Remedies available to the landlord
If a tenant is responsible for deterioration in the condition of the property or furniture provided by the landlord, the landlord may be able to take action by serving a notice for breach of a ground for possession and consequently obtaining a possession order.
The tenancy agreement may also have terms that give the tenant an express duty to carry out repairs. A breach of such duties may give rise to an action for possession and/or of damages for breach of contract.
Last updated: 19 March 2021