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The future of disrepair - legal update

27 April 2017 • Rebecca Aspin

Unfortunately, it does not appear that claims for disrepair are going to reduce in numbers any time soon. In fact, I would go as far as saying that these types of claims are going to considerably increase, until the Government makes changes to the administration and regulation of these claims. Government talks relating to this have now been placed on hold due to the impending election.

 

Not only are we now faced with the usual “claim farmer” culprits, it appears those solicitors who would usually work for tenants on a legal aid basis are now seeking work further afield. This means they are now actively looking at representing tenants by way of Conditional Fee Agreements and After the Event Insurance; thus opening the door to the disrepair sector.

What are tenant lawyers looking for?

As we all know the run of the mill claims rely on section 11 of the Landlord and Tenant Act 1985. This imposes an implied covenant that the landlord shall keep in repair the structure and exterior of the Premises. However, it appears that tenant lawyers have now become savvy to the weaknesses of many landlords; poorly drafted tenancy agreements.

The majority of tenancy agreements provide express obligations that go above and beyond any terms that may be implied by Statute.

As an example, in the case of Welsh v Greenwich London Borough Council, it was an express term of the tenancy that the landlord would ‘maintain the dwelling in good condition and repair’. The Court of Appeal held that the term ‘good condition’ was intended to make a significant addition to what was conveyed by the word ‘repair’. The landlord was held liable for severe condensation and mould growth not involving structural or external disrepair.

This is worrying for many landlords as the majority of tenancy agreements that I see include this type of wording. This could mean that landlords are liable for ‘repairs’ (not just disrepair) that falls out of the scope of Section 11. For example, a landlord could be liable for condensation as the landlord has failed to keep the property in a ‘good condition’. Similarly, if a landlord is obligated to ‘maintain’, it could be successfully argued that a tenant would not even need to place a landlord on notice of repairs, as it would be part of their duty to maintain all of their properties.

Finally, there appears to be a particular increase in claims relying on section 4 of the Defective Premises Act 1972. Section 4 has two purposes, the first is to make the landlord liable for personal injury or damage occurring as a result of disrepair whether or not the landlord had knowledge of the defects. The second is to give rise to obligations to prevent the condition of the dwelling causing personal injury or damage, and so can give rise to a claim for an order compelling the landlord to put right a state of affairs that might cause loss or personal injury to others whether or not such a claim includes a claim for damages. In other words there need not be a damages claim to justify issuing proceedings of this type.

It is therefore imperative that works are carried out at a property as soon as is reasonably possible. Tenant lawyers seem to be including this section in all of their claims as a safe guarding technique. If, for example, after disclosure has been completed there appears to have been no notice of the outstanding repairs. A tenant lawyer could continue with the claim with purely a specific performance element. Unfortunately for landlords, this type of claim will be successful and more likely than not, the tenant will be able to recover their legal costs from their landlord.

New and successful arguments for notice periods

Implied Notice:

  • EPC Certificates – it has been successfully argued that a person carrying out checks to produce an EPC certificate would be reasonably qualified to identify if there was an underlying issue within a property e.g. damp. It is imperative that if these checks are done internally, the appointed employees are fully aware that when attending properties they should be making a detailed note of the condition of the property. If this is carried out by an external company it is important for landlords to check their contracts. Are there any clauses within the contract that would compel the attending contractor to inform you of any issues with the property?
  • Anyone attending the property – as above it is important that anyone who accesses the property takes a note of the condition of that property. This could include Gas Engineers, Housing Officers and Maintenance etc. For example, if you could provide, as evidence, a note detailing ‘Joe Bloggs attended the Property on 15/12/2013 to speak with tenant regarding reports of ASB. During my visit I entered the living room and kitchen. I could not see any issues that would warrant repair’. Please also note, this applies to not only the internal parts of the property but external as well! When driving around estates, keep an eye out for blocked gutters, loose/broken slates/ tiles or wall staining that could indicate damp. Although I am aware this would be far more difficult to record it would be excellent evidence for disrepair claims!

Surveyors

It is common knowledge that there are certain questionable Surveyors within this industry. Some Surveyors do not charge for their work unless they can find over £1000 worth of repairs at a property, some produce sub-standard reports and some are not CPR Part 35 compliant.

For these reasons I would advise that landlords begin to take a stricter line with surveyors. The following points need to be established in a claim before the report is agreed to:

  • Damp – if (as usually is the case) the claim is for damp in several rooms within the property the Surveyor’s Report must establish what the cause of the damp is. Damp is only an actionable defect if it stems from something that is broken. For example, if the DPC has been breached. If a causal link cannot be identified between the damp and something that is broken then it would not be an actionable disrepair. In an attempt to put this in to context if a surveyor describes “addled plaster” within their report but the reason for this cannot be established. The landlord would only be liable to pay damages for the broken plaster but not for the effects of the damp. I would advise that invasive testing is used to establish the causal link of any reported damp.
  • Vagueness – if there is any ambiguity within a Surveyor’s Report, these reports must be sent back until the landlord is happy with its contents. Remember this is the main point of evidence to be used at a trial and you will be paying for this service, make the most of it!
  • Protimeters – the reliability of this kind of testing has recently been questioned. If there are other methods available, use them!
  • Still not happy with the report? – If the report is done on a joint basis, rather than a single joint basis, you do not have to disclose that report if you are not happy with it. Surveyor’s reports are covered by legal professional privilege and it may be detrimental to your case to disclose too early. If you are not happy, appoint another expert for another opinion, this may be costly but it could save a lot of money in the long run. You do not need permission from the court to appoint experts, you simply need permission to rely on an experts opinion (you could pick the report you want to rely upon). Please note this does not apply to experts who are appointed on an SJE basis, these reports must be disclosed to both parties.

Part 36 offers

It appears that tenant solicitors are basing their Part 36 offers around a 30% - 35% rent reduction for run of the mill claims. It is common practice for matters to be settled at around a 15% rent reduction.

Limitation periods

It has recently been successfully argued that tenants could claim outside of the usual 6 year limitation where claims involve an element of nuisance.
For example, where a property was infested by rats for a period of 16 years due to a hole in the wall (the disrepair), the Claimant successfully claimed damages for the whole 16 year period rather than this being limited to 6 years.

Infestations

It appears Courts are taking a harder line where infestations are occurring as a consequence of disrepair. In a recent case, wasps entered a property and built a nest due to there being a hole in the wall. Although the landlord removed the nest annually, the wasps kept returning as the disrepair was not fixed. The Claimant successfully made a claim for damages for the disrepair element £2000 and for the infestation £18,000.

Get in touch

If you would like more information or discuss any of these issues further please do not hesitate to get in touch with our housing management team.

Rebecca Aspin, Solicitor
0161 214 4814 / rebecca.aspin@croftons.co.uk

 


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