Disrepair as a Defence to Possession Proceedings
Many tenants don’t think there is any defence to possession proceedings, but a tenant may be able to allege disrepair as a defence.
In this article, our Landlord and Tenant Solicitors explore the topics of rental property disrepair, UK landlord obligations and a tenant's rights to use disrepair as a defence.
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Defending possession proceedings
If a landlord has served a Section 8 notice alleging rent arrears and seeking possession, the situation may be a bit more complicated than the bald facts stated in the notice and the later possession claim.
A tenant may have been in genuine financial hardship and unable to pay their rent or may have made a conscious decision to not pay their rent, or a proportion of it, to try to get their landlord to comply with their obligations and sort out the rental property disrepair. Their landlord may have responded with a Section 8 notice and not sorted out damp and mould in the rental property, or the landlord may have made a half-hearted attempt at a few below-standard repairs that did not resolve the tenant’s disrepair complaints.
Ideally, as soon as a tenant encounters difficulties with landlord repair obligations, the tenant should consult with Landlord and Tenant Solicitors to get legal advice for tenants on:
- Their tenant rights and UK landlord obligations under the law
- Their tenant obligations and rights under the terms of their tenancy agreement
- Landlord rights to regain property and the eviction process
- Tenant disrepair compensation claims
Our Disrepair Lawyers in London will also advise on disrepair claim strategy. For example, on whether a letter before action should be sent and the timing of the letter. If a Section 8 notice has been issued, we will check if the notice is valid. If the notice is valid, our disrepair experts will explore the best way to use disrepair as a defence to the possession proceedings started by your landlord.
Using disrepair as a defence in possession proceedings
When a tenant asks if they can use disrepair as a defence to a possession claim and therefore avoid eviction, the answer isn’t always straightforward. A Landlord and Tenant Lawyer will want to know from you:
- The nature of the disrepair
- When the disrepair was first reported to the landlord or their letting agent
- The landlord’s response
- If there were any attempts made to fix the disrepair
- If the landlord says you refused access to the rental property and the circumstances around why access was refused
- The extent of the current disrepair
- The impact of the disrepair on you and your family
- Any financial loss sustained by you
- The health impact of the disrepair on you and your family
- Whether you agree with the figure the landlord says is owed in rent but just dispute that you should pay it
Armed with that information, a Disrepair Claims Lawyer can start to look at your counterclaim to your landlord’s possession claim and advise on your prospects of success.
Frequently Asked Questions on Disrepair as a Tenant Defence to Possession
Can I stop a possession order being made by claiming disrepair?
If your landlord’s claim for possession is based on rent arrears, you might be able to mount a defence that your rental property is in such a poor state that your disrepair counterclaim should extinguish the rent arrears.
What information do I need to give my Landlord and Tenant Solicitor?
Your lawyer will want to see several documents, such as the Section 8 notice and possession claim, the information given to you by your landlord at the start of your tenancy agreement, your tenancy agreement, any pictures of your rental property taken at the beginning of your tenancy agreement and all emails, texts, What’s App messages and other communications between you and your landlord or letting agent or directly with workmen instructed by the landlord, and any up to date evidence, such as photos, of the extent of the disrepair.
What can the court order my landlord to do?
In your disrepair counterclaim to your landlord’s possession claim, you can ask the court to order:
- That possession is refused, so eviction can't go ahead as the court says you are entitled to continue to occupy
- The rent arrears are fully or partially written off because of the disrepair
- The landlord carries out the repairs (called specific performance)
- Compensation for loss of amenity as the landlord didn’t fulfil their side of the tenancy agreement and meet their obligations as a landlord
- Damages if you or your family suffered financial loss because of the disrepair or personal injury
- Your landlord pays your legal costs
The extent to which you will be successful in your counterclaim will depend on the severity of the disrepairs and the impact of the disrepair on you and your family. For example, in a severe case of damp and mould in a rental property, you may be able to prove that your child’s health has suffered because the landlord failed to repair.
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