Some landlords, when issuing proceedings under section 8, run the potential risk of defence and counterclaim. In some cases, there is no disrepair and a tenant erects an erroneous defence and counterclaim.
Local authorities, upon a tenant seeking assistance for housing, will as standard advice to the tenant, advise them to stay put, until they are evicted by the landlord. Only after the eviction, the tenant may be positively considered for housing. Often, the tenant is advised by the council, if they have rent arrears, they may be deemed as intentionally homeless under the Act. At this junction, the only option the tenant may feel they have is to defend a section 8 claim for rent arrears under the section 8 notice.
This would in part explain why some landlords are perplexed when they receive a defence and counterclaim when there is no disrepair.
The landlord can only lose or lose
When a landlord faces a defence and counterclaim, they can only lose and lose. This might sound a strange comment. Not strange when you understand and are experienced in dealing with disrepair cases.
Disrepair’s can cost a landlord an average of £10,000 in legal fees. The cost depends in part on the nature of the alleged disrepair and the directions given by the Learned judge.
If the matter goes all the way to trail and the landlord wins, indeed the landlord will get an order where the tenant is ordered to pay the landlord legal fees and rent arrears. The fact is the landlord is unlikely to see any money from the tenant. I have only seen one client (landlord) see any money from the last 20 years of dealing with disrepair claims.
If you win it’s a Hollow victory
After a landlord spending, several thousand pounds in litigation costs and several thousand lost in rent arrears, the landlord understandably cannot treat this as a victory.
Alternatively, if the landlord loses the case, the landlord will have to pay the tenants legal costs and swallow the loss of rent too.
So when it comes to a disrepair claim, the landlord can only lose and lose.
What is the alternative, how can you deal with disrepair claims effectively, from a landlord standpoint?
It is important your lawyer dealing with your disrepair claim has good personal experience in plumbing and general building work.
When negotiating directions in order to progress the claim, it is important to be prudent in settling on directions that are fit for purpose. If a joint surveyor is not needed then this will reduce cost and time for all parties concerned.
Joint Draft Surveyor’s instructions – consider the content carefully
If a joint surveyor is necessary, it is important you draft the joint instructions;
(1) To report on potential reasons, cause for the alleged problems, see an example. Some times the cause is down to the tenant.*
(2) To ensure the surveyor reports “only” on the alleged disrepair. Far too often, the surveyor’s joint instructions are open-ended. It is important when dealing with court directions you obtain directions that clearly states the surveyor is to carry out a survey for the alleged disrepair.
*If the tenant claims, the property has mould and claims this as disrepair, then you need the joint instructions to read something like;
- Has the double glazing been fitted with trickle vents?
- Does the flat contain a cloth dryer?
- Is an outside 100mm pipe vent fitted for the dryer? (only ask this if the dryer is owned by the tenant)
- How many clothes did you see on the radiator?
- Please take a photograph of the top of the radiator showing small rust marks. If the radiator does have rust marks at the top of the radiator that is indicative of clothes being dried on the radiator which in turn could cause mould problems.
The above questions are very useful, the surveyor will see where you are going with these questions. A good litigator will have ammunition, (you pray) so that this alleged disrepair can be defeated.
It’s worth considering if it would be prudent to request the surveyor to prepare a Scotts Schedule, usually one would be helpful.
Part 36 Landlords Friend
A part 36 offer should always be considered, a powerful tool in disrepair claims. The chance of the landlord getting any rent money from the tenant is low (unless you have a guarantor).
Structuring a settlement where you write off the rent arrears, you get a possession order and no money judgement against the tenant so the tenant is not deemed as intentional homeless is one to consider. Of course each and every case is different.
The final point – In most cases, the alleged disrepair itself is a secondary issue, the tenant must provide evidence they reported the disrepair, when? how? and by what method? to who?
The tenant may well have a leak, but if the tenant has not reported it, how can the landlord be liable?
28th of February 2020
Source: British Landlords Association