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Disrepair: be robust in response to new tactic

21 May 2018 • Melanie Dirom

In an apparent new tactic, we are seeing disrepair claimant’s solicitors advising tenants not to give their landlord access to the property for any reason while a claim is ongoing – this is a breach of tenancy and a health and safety risk, and RPs should be robust in their response.

Disrepair claims can be handled in such a way that the landlord can take advantage of the timescales set by the Housing Disrepair Protocol. The way in which some of our clients do this is to attempt to establish, at a very early stage, their liability position.

Establishing this position at an early stage allows our clients to either make early offers of settlement to keep costs down to a minimum, or establish a strong defensive position from the outset.

Pre-inspection assessment

In order to achieve this result we encourage our clients to send out their in-house surveyor’s to the properties prior to agreeing the instruction of a Joint or Single Joint Inspection by experts. In other words, clients will look at making their initial assessment of liability within the first 20 working day deadline set by the Housing Disrepair Protocol.

It must be noted that this pre-inspection is explained to both the tenant and the claimant’s solicitor as being solely for the purpose of the landlord, who can then produce a report for their internal processes and decision making – this visit is specifically not to carry out any repair works, and no repair works will be carried out until it has been agreed by both parties.

Another hurdle for RPs

Unfortunately, in recent months this has provided yet another hurdle for our clients to overcome when dealing with disrepair claims.

A new approach that appears to have been adopted is that tenants are now being advised by their solicitors to not allow their landlord access to their property for any reason whilst the disrepair claim is ongoing.

We have had express confirmation from claimant’s solicitors that the tenants are not, and will not, allow access for a pre-inspection by our clients. When questioned on their reasoning for this we have been advised that this is as per the wording of the Housing Disrepair Protocol – we have yet to find this wording!

Due to this stance, and the advice from their solicitors, the tenants have not only refused access to their landlord to pre-inspect the property but have refused access for gas and electrical safety inspections. This is not only a breach of their tenancy agreements but also places the tenant and other residents at a potentially serious health and safety risk.

Taking legal action works

In a recent case, after persistent refusals to allow access by the tenant and the tenant’s solicitor, our client saw no other option than to seek an injunction from the court to allow access for the pre-inspection of the property. Upon issue and service of this application our client proceeded with further attempts to gain access, which was still denied.

Our client was, however, ultimately successful with this application and subsequently access was allowed for a pre-inspection of the property. The tenant also had to pay the landlord’s costs associated with making the application. This is an excellent result for our client and provides the opportunity to off-set these costs against any future damages that may be payable under the on-going disrepair claim.

Our advice

Our advice to RPs in light of this new tactic is, as always, to be robust in your response; tenants must allow their landlord to access the property – especially for gas safety checks - irrespective of whether there is an ongoing disrepair claim. Don’t be afraid to use the legal tools available to you if there is a tenancy breach, particularly one which could pose a serious health and safety risk.

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