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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.
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.
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:
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.
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.
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.
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 / firstname.lastname@example.org
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