A dangerous tactic, withholding rent because of disrepair

A common question asked by tenants struggling to get their landlords to carry out repair works is whether they can stop paying rent until the repairs are dealt with. Understandably, tenants often find it unfair that they must continue to pay rent when their home is in disrepair and their landlords do nothing to remedy the problem. Frustrated tenants often query whether they can use their rent as leverage either by using the money to carry out the repairs themselves or through withholding the rent in the hope that this will force the landlord to take action.  Withholding rent, however, is a dangerous tactic as rent arrears put tenants at risk of losing their homes.

Contrary to common belief, tenants do not have the legal right to withhold rent because their landlord has failed to carry out repairs. Tenants who do not pay rent run the risk that their landlord will issue possession proceedings to try and evict them.

There are a several situations in which a tenant may seek to use rent to deal with disrepair. Firstly, a tenant may simply stop paying rent in an attempt to compel the landlord to carry out necessary repair works. Using rent as a bargaining chip in this way is very risky as a landlord is entitled to bring possession proceedings against a tenant who is in rent arrears. The ease in which a landlord can evict the tenant because of unpaid rent depends on the type of tenancy agreement. For an assured tenant, if the landlord can prove that at least eight weeks’ rent is in arrears (or two months’ rent if rent is payable monthly) both when the notice seeking possession is served and at the date of the hearing, the court must make an outright possession order. Assured shorthold tenants can be evicted even more easily as a landlord is entitled to obtain a possession order as of right, without the need to prove a ground or reason for requiring possession.

Secondly, if sued for rent arrears, the tenant may seek to rely on a defence of ‘set off.’ This entitles the tenant to set off any damages awarded for disrepair against the landlord’s claim for arrears of rent. Although this defence may be available in possession proceedings, if the tenant has allowed arrears to accrue, any compensation for disrepair is unlikely to extinguish the landlord’s claim for rent, however strong the claim for disrepair.

Finally, tenants may wish to use the rent money to carry out repairs themselves. While at common law there exists a right of tenants to carry out repairs and deduct the cost from future rent payments (Lee-Parker v Izzett [1971] 1 WLR 1688), this exists in very limited circumstances and a specific procedure must be followed. The tenant must comply with the following steps:

1.        Notify the landlord in writing of the works required;

2.      Allow the landlord reasonable time to carry out the works. If they are still not completed, notify the landlord that unless the works are carried out by a certain date, the tenant will do them and the tenant intends to deduct the cost from the rent due;

3.      If the landlord still does not act within a reasonable period, obtain quotes for the repair work from reputable contractors (usually three quotes are recommended) and send these to the landlord with further notification that unless the repairs are carried out by a specified deadline, the tenant will arrange for the works to be completed and deduct the cost from the rent;

4.      If the landlord still does not respond, arrange for the works to be conducted by the contractor who provided the lowest quote;

5.      Pay for the work, keep all receipts and send copies to the landlord asking for a refund of the money;

6.      Should the landlord ignore the refund request, notify them precisely how and when the deductions from the rent will be made and deduct the costs from future rent payments.

This is a very strict procedure and specialist legal advice should be obtained to ensure that it is followed correctly. It is also very important that tenants are certain that their landlord is legally responsible for the disrepair before using rent money to pay for repairs.

This last remedy is only likely to be useful for minor works as it depends on the tenant having the money to pay for the works when they are completed and recovering the sums from future rent. It is unlikely to be a helpful solution for tenants with low incomes and with properties in need of major repair. Nor is it a desperately useful remedy for tenants who receive housing benefit where rent money is paid directly to the landlord.

Tenants who do wish to follow this procedure should be aware that once the works are completed, they are liable for the quality of the work undertaken. If the repairs have not been carried out properly, the tenant is legally responsible for remedying any damage.

In conclusion, it is inadvisable for a tenant to withhold rent because of disrepair. The consequences are potentially very serious and could trigger the landlord commencing possession proceedings against the tenant. Tenants with disrepair problems should seek help from specialists who can advise them on their rights and the legal remedies available to them.

If you would like to take advice on any aspect of disrepair and tenants’ rights then please contact a member of our housing team on 020 7940 4000.

Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.