Five steps to help prevent disrepair disputes

Faye Schneider, Partner in the Landlord and Tenant Team at ARAG Law, shares how you can best protect agents and landlords against an allegation of disrepair.

What landlords need to know

A common reason that tenants fall into rent arrears is because they're unhappy with the condition of the property, and begin to withhold rent. Allegations of disrepair can have an adverse effect on a rent protection claim if appropriate action hasn’t been taken to resolve any problems that are the responsibility of the landlord, so here's an overview of how to manage this situation.

Faye Schneider takes a deeper look below.

Keep a detailed inventory

Limiting claims of property disrepair by tenants can be tricky. Ultimately, a landlord can't be liable for damage or disrepair to a property if they don't know about it, unless for example it can be proven that the property is uninhabitable and the landlord had or should have had knowledge of the defects causing it to be uninhabitable.

Some tenants will allege that the disrepair existed before the start of the tenancy and that the landlord should therefore have been aware of it. It is best practice to ensure that a thorough inventory and schedule of condition is prepared by an independent third party before a tenancy starts. This should also, where appropriate, include photographs of any pre-existing issues. It goes without saying that, as a landlord, you should ensure that the property is in a habitable condition at the start of the tenancy.

Inspect the property, following tenancy agreement provisions

Inspecting the property is the most reliable way to check the state and condition of it. Most modern tenancy agreements will contain provisions about inspecting the property and will usually state what a landlord must do before they can carry out the inspection.

This is likely to involve providing the tenant with advanced written notice and ensuring that the notice is given in accordance with the service provisions contained within the tenancy agreement.

Alternatively, an agent may be able to rely on the "right to inspect" contained in the Homes (Fitness for Habitation) Act 2018. While regularly inspecting the property is generally considered to be good practice, it does need to be balanced with the tenant’s right to quiet enjoyment of the property and the risk of harassing the tenant, which is in breach of Section 1 of the Protection from Eviction Act 1977.

Section 1 of the Protection from Eviction Act 1977, imposes an obligation on the landlord of a residential occupier or an agent to not interfere with the peace or comfort of the residential occupier or members of their household, unless the tenant proves they have reasonable grounds for doing so.

When a property inspection is undertaken, inspection reports and photos should be drafted and retained.

In my view, the frequency of inspections and what is reasonable in the circumstances is likely to be subjective. However, it is common for agents to inspect quarterly or six-monthly.

Respond promptly to allegations

Any complaints of disrepair by a tenant for which the landlord is liable, should be responded to “adequately” and within 14 days to avoid the risk of a retaliatory eviction at a later date.

Responding to a complaint “adequately” is likely to involve responding promptly to any complaints from the tenants, taking steps to arrange inspections by relevant experts at a time convenient to the tenant and/or repairing minor problems without delay.

If the repairs cannot be carried out promptly, the tenant should be kept informed verbally and in writing throughout the process, until the repairs are completed. If repairs are not dealt with promptly and in the correct manner, a landlord may not be able to serve a valid repossession notice.

Understand the Decent Homes Standard

The Decent Homes Standard sets out the minimum conditions a property should meet to provide tenants with a safe, warm and comfortable place to live. While traditionally associated with social housing, the government has indicated plans to extend the standard to the private rented sector through the Renters' Rights reforms.

The standard focuses on ensuring properties are free from serious hazards, are in a reasonable state of repair, have reasonably modern facilities and provide effective heating and insulation. Landlords who proactively maintain their properties in line with these principles are less likely to face disrepair allegations, enforcement action or compensation claims from tenants.

Regular inspections, prompt repairs and keeping detailed maintenance records can help demonstrate compliance and provide valuable evidence should a dispute arise.

Get an expert opinion

The cause of the disrepair may not be obvious from an inspection and an expert may be required to determine who is liable to repair the property. In my experience, it can be difficult for a layperson to distinguish between damp and condensation; the latter will often rest with the tenant because the cause may not be due to disrepair to the property per se and can be due to lifestyle.

I anticipate that these sorts of issues may increase as a consequence of the current energy crisis, because properties will fall into disrepair due to condensation caused by lack of ventilation or heating.

Finally, if agents or landlords receive any notices from the local authority – including but not limited to improvement notices – for works required to a property, they should seek legal advice immediately.

Disclaimer: all information in this article was correct at time of publishing.

News and Press

Stay up to date with our latest news, insights, and press releases.