Friday May 20, 2022
Dealing with a Disrepair Claim can be a time-consuming, expensive and frustrating experience for many landlords. The COVID-19 pandemic risks seeing such claims being made in higher numbers than before, given the social distancing restrictions have led to many landlords and agents having to defer inspections until restrictions are lifted. This – combined with many tenants also being in rent arrears due to the pandemic – only serves to cause additional problems for landlords.
Now that life is returning to normality, questions arise as to what this means for the risks posed to landlords in terms of Disrepair Claims being made.
Understanding how such Disrepair Claims work in practice however can be crucial to protecting your position as a landlord.
Whilst this article will not go into detail regarding the various elements of a Disrepair Claim, it is important to remember that, at its heart, a Disrepair Claim is a claim for breach of contract. In other words, a tenant must be able to:
A. Show that there is a contract in existence;
B. Show that there is a term/clause within this agreement which requires that the landlord ensures the property is kept in good repair and condition;
C. Demonstrate that the landlord has breached this term;
D. Prove that the landlord has knowledge of this breach; and
E. Identify what “loss” the tenant has sustained as a result.
It is clear that there is little sense in a landlord and tenant arguing over elements ‘A’ and ‘B’ above. There is clearly a contract in existence (this being the tenancy agreement, whether written or oral), together with there being a term the landlord has to keep the relevant parts of the property in good repair and condition. Assuming this duty is not already dealt with by the tenancy agreement itself, it will nonetheless be covered by the key provisions of the Landlord and Tenant Act 1985.
In respect of the third element ‘C’ however, landlords can clearly take steps here to safeguard their position, simply by ensuring repairs are kept on top of to begin with. The easiest way of doing this is to carry out regular inspections of the property.
As is often the case with legal matters, evidence is everything. As such, when you inspect a property, it is clearly advisable to ensure you are able to demonstrate that you have done so, such as by preparing an inspection report. Taking photographs to attach to this report is also advisable, together with ensuring your report records any concerns which the tenant wishes to raise. To this end, you should explicitly ask the tenant if they have anything they wish to raise. If not, record this. Likewise, if they do raise any concerns, you should record this and immediately consider whether it is something you need to take action in respect of. Either way, ensure you get the tenant to counter sign the report if possible. Such reports can go a long way if the same tenant subsequently alleges that you have failed to inspect the property regularly, or that they have brought an issue to your attention which you failed to act on.
In the event that a disrepair issue is brought to your attention however, then it is from that moment when the clock will start ticking. In other words, it is from the date you are notified that you will be under a duty to look into such issues and take whatever action is necessary within a reasonable timeframe (this being the fourth element ‘D’).
It is therefore simply not enough that there is disrepair issue present – on the contrary, the landlord must be made aware of it.
Likewise, when an issue is brought to your attention, approach it in the same way as you would an inspection – namely by attending at the property promptly, taking photographs, as well as preparing a stand-alone inspection report if required. The same applies in respect of any steps you take when subsequently engaging any tradespeople to attend to fix any problems identified.
Taking these simple steps can help not only prevent a Disrepair Claim from arising in the first place, but it can also nip any such claim in the bud and prevent it from proceeding any further, thus avoiding the tenant claiming to have suffered any “loss” (this being the fifth and final element ‘E’).
The reality is that landlords will likely be seeing more of these cases now that COVID-19 restrictions are lifting and inspections can finally resume in earnest. In particular, it will likely be the case that, going forwards, courts will see a much greater influx of cases being brought in line with the Homes (Fitness for Habitation) Act 2018 – the impact of which was effectively postponed with the onset of the COVID-19 pandemic.
Now that the pandemic is subsiding however and in-person inspections can resume properly, it is likely only a matter of time before we start seeing more and more of these cases being brought in the Courts. The way for landlords to protect themselves against such claims being made against them is to take simple yet effective steps to address any disrepair issues as fully and as promptly as they can.
If you would like advice regarding any of the above, please contact our Dispute Resolution Team on 01204 920103 or email email@example.com