Disrepair Claims: A Guide for Private Residential Landlords

As a private residential landlord, one of the most costly and time-consuming challenges you may face is a tenant’s claim for disrepair. It is not uncommon for landlords dealing with tenants in substantial rent arrears to also face a disrepair counterclaim when attempting to recover possession under section 8 of the Housing Act 1988. 

In this article, we outline the key elements of disrepair claims and provide practical recommendations to help private residential landlords comply with their repairing obligations while minimising the risk of disrepair claims. 

Elements of a Disrepair Claim 

To successfully establish a claim for disrepair, a tenant must establish that: 

1. There is a contract between the landlord and the tenant (typically a tenancy agreement, whether written or oral). 

2. The agreement includes a clause requiring the landlord to keep the property in good repair and condition. Even if such a clause is absent, landlords remain legally obligated to maintain the property under the Landlord and Tenant Act 1985. 

3. The landlord has failed to keep the property in good repair and condition. 

4. The landlord was made aware of or had knowledge of the disrepair. 

5. The tenant has suffered loss as a result. 

Landlord’s Duties 

Landlords are legally required to maintain the following aspects of a property (with tenancy agreements sometimes outlining additional obligations agreed between landlords and tenants): 

• Damp and mould-related issues 

• The structure and exterior of the premises 

• Water pipes and installations, including baths, sinks, drainage systems, and toilets 

• Gas pipes and electrical wiring 

• Roofs, windows, gutters, and drains 

• Heating and hot water systems 

Landlords must also ensure the property is fit for human habitation. This includes addressing inherent design defects that may result in condensation, dampness, poor ventilation, or ineffective heating. 

Protecting Your Position 

Inventory and Schedule of Condition 

When onboarding a new tenant, we strongly recommend that landlords instruct a third party to conduct a full photographic inventory and schedule of condition as close to the tenant’s move-in date as possible. 

This document serves as evidence of the property’s condition at the start of the tenancy. The inventory and schedule of condition should be provided to the tenant, who should sign to confirm agreement with its contents. Tenants should be encouraged to review the document carefully and highlight any discrepancies at the outset to avoid disputes later. 

Regular Inspections 

Landlords should conduct regular property inspections to stay on top of necessary repairs and monitor the property’s condition. During each inspection, it is advisable to: 

• Take photographs of all rooms. 

• Complete an inspection report. 

• Provide a copy of the report to the tenant. 

Promptly addressing repair issues is crucial. Delays often result in problems worsening over time, leading to significantly higher repair costs and more extensive work. 

Keeping Evidence of Correspondence 

Maintaining thorough records of all correspondence with tenants is best practice and can save landlords significant time and expense. 

A common dispute arises when landlords have no record of a reported issue, while tenants claim they reported it via a phone call. To mitigate this risk, landlords should: 

• Take detailed attendance notes of all phone calls with tenants. 

• Keep a log of all reported issues, including the date they were raised. 

• Record when repairs are completed. 

This is important, as when an issue falling within your repairing obligations is brought to your attention, the clock starts ticking on the time you ought to remedy that particular issue.   

The mere existence of an item of disrepair does not automatically mean that you have breached your repairing obligations. Your obligation to remedy disrepair begins with the date on which you become aware of the disrepair. You then have a ‘reasonable time’ in which to remedy any issue (reasonable time will vary depending on the severity of the issue). If a ‘reasonable time’ has passed without the landlord remedying the disrepair, then the landlord is likely to be in breach of their repairing obligations.   

Keeping evidence of correspondence is also crucial in circumstances where a tenant has been reporting issues of disrepair, but then you and your contractors are having difficulties in obtaining access to the property to inspect and carry out any necessary repairs. We discuss this in more detail below, but keeping track of written requests for access is extremely useful.   

Seeking a Second Opinion 

At Ronald Fletcher Baker LLP, we frequently act in complex disrepair disputes where there is disagreement between the landlord and the tenant over responsibility for an issue. 

Often, we see landlords using their regular contractors to attend properties and complete repairs which their tenants have reported. They then rely on information provided by their contractors to determine the extent of the works required, and whether the landlord is responsible for those repairs.   

In circumstances where you have a suspicion or are told by your contractor that the tenant may be contributing to the issues being reported, getting a second opinion on the issue is recommended. It would be beneficial for this to be a surveyor specialising in housing disrepair cases, who should arrange to attend the property on a date agreed between the parties, complete a full inspection, and report on their findings. This should give the landlord a good idea of whether the tenant is contributing to issues and give the tenant an opportunity to change some of their actions to avoid further issues re occurring following any remedial works.   

It is rare that a tenant is deliberately contributing to issues of disrepair as this is their home, and generally tenants do not want to live in a home affected by disrepair. It is sometimes the case that tenants do not realise, for example, that drying their laundry indoors during the winter, with no heating on and no dehumidifier, contributes to a damp / condensation issue. A reasonable conversation between the landlord and tenant can often quickly resolve the issues between the parties, and avoid protracted and often fraught disputes – and crucially, ensure that the property remains in a good state of repair and condition, with no dampness, condensation or mould.   

Landlords as Leaseholders 

In some cases, landlords are leaseholders and may not be responsible for certain repairs. A common example is a leaseholder of a top-floor flat experiencing water ingress from the roof, where responsibility for the roof lies with the freeholder. 

If a tenant reports such an issue, the landlord should notify the freeholder immediately, providing photographic evidence and referring to the relevant clauses in their lease. If the freeholder fails to take action, the landlord may need to pursue legal proceedings to enforce repairs. 

Retaining records of all communications with the freeholder is crucial in these cases. 

Access Issues 

As mentioned earlier, keeping a record of all correspondence with tenants is essential. When seeking access to investigate or repair reported disrepair, landlords should: 

1. Ensure that all access requests comply with the tenancy agreement. If the agreement requires written notice of at least 24 hours, ensure this is provided. 

2. Offer the tenant multiple date and time options for inspections or repairs, being mindful of their work commitments. 

3. If you do not get a response to your initial request, ask again. This time, decide on the date and time on which you / your contractors will attend the Property. State clearly that access is needed on [x] date at [x] time for [x] work to be completed. 

4. If access is refused, document the failed visit. Contractors should provide a written report noting the date, time, and reason for denied access. This should be kept in the tenant’s file. 

5. If the issue persists, attempt to resolve it amicably. However, if the tenant continues to deny access, legal action may be required to obtain an injunction for entry. 

If, however, you take all of these steps and the tenant is either not responding or has agreed multiple dates for access which have been reneged on at the last moment / access refused when you get to the property, this does not necessary mean that your repairing obligation goes away.   

Of course, it is mitigating factor to take into account in the event that tenant issues proceedings for disrepair, but a landlord who needs to complete works to remedy disrepair / damage at a property and whose tenant is refusing access, would be entitled to issue an injunction requiring the tenant to give them access for these works.   

Consequences of Failing to Comply with Repairing Obligations 

While carrying out repairs can be costly, failing to do so can be significantly more expensive. A landlord who loses a disrepair claim may be liable for: 

• The cost of repair works (which may be higher due to delays). 

• Compensation to the tenant for any losses suffered. 

• The tenant’s legal costs. 

Additionally, if a tenant has stopped paying rent and the landlord seeks possession, a disrepair counterclaim can delay the process—often by more than a year. 

Maintaining clear records of the property’s condition, inspections, and all communications with tenants can help protect landlords from such claims. 

Facing a Disrepair Issue? Contact Us

If you find yourself dealing with an issue of disrepair / dispute with your tenant, contact Marissa Lawrence and David Burns at 0302 917 1707 or email m.lawrence@rfblegal.co.uk / d.burns@rfblegal.co.uk.