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Faye Schneider, Principal Associate overseeing the Landlord and Tenant Team at DAS Law, shares how you can best protect your agency and your landlord against an allegation of disrepair.
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.
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.
However, 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.
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.
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 Section 21 notice.
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 lay-person 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: This information is for general guidance regarding rights and responsibilities and is not formal legal advice as no lawyer-client relationship has been created. Note that the information was accurate at the time of publication but laws may have since changed.