- August 4, 2011
- By Andrew Brookes
- 0 comments
Housing Disrepair and the Pre-Action Protocol
The housing disrepair pre-action protocol is supposed to ensure that the parties start to discuss the issues at an early stage and, where possible, agree a schedule of works with view to settling claims without having to bring court proceedings.
A landlord of residential premises will usually have at least a basic duty to repair the structure, exterior and the installations for gas mains and water to the property. A common sense view would be that if a landlord is responsible for repairing a roof and the roof is leaking then our questions to the landlord are simple, what the landlord intends to do to repair the roof and when.
Experienced housing solicitors, certainly in London, usually work on the assumption that, save for in very few cases, the landlord will not make good in the early stages and proceedings will be issued. The claim will need to be proved to a required standard which will require expert evidence.
The key issue in the protocol is agreeing an expert to report on the nature of the disrepair, the cause and necessary remedial works. Not only are experts expensive to instruct, their opinion will always be key in establishing liability against the Defendant which is why it is often difficult to agree experts in the first place and why expert evidence is often challenged by a Defendant. Experts are often appointed as joint experts by the court in default where a Defendant has not raised objections at the appropriate stage and the Defendant will seek to undermine the expert evidence because it is obviously detrimental to them. Often social housing landlords prefer to use their own in house surveyors to report on the disrepair rather than pay for an independent expert. This would allow them full control over the expert evidence if we did not insist on an impartial person to act for both parties.
Difficulties in relation to expert evidence causes a shift from moving towards swift and effective dispute resolution to obstruction and delay because parties cannot reach agreement. Delay happens even where the disrepair is very obviously the landlord’s responsibility and on no interpretation of the facts should a landlord be allowed to sit back and allow properties fall into such a state of neglect. Tenants understandably cannot comprehend why a landlord would want to ignore serious problems affecting a building that belongs to them. From a Defendant’s point of view obstruction and delay to proceedings will always be to their benefit and give them a grace period to make good.
There can be endless arguments in claims regarding causation whereby a Defendant is seeking to be excused for their conduct and disrepair claims are vigorously defended. Usually when an expert inspects they will not have access to neighbouring properties at the time of the inspection. This means that a report will recommend “trace and remedy leak from above” the surveyor will speculate on potential causes but no definite cause is identified. Defendants seek to challenge evidence where there may be a number of causes. Often where a defect arises, the cause is irrelevant because the landlord is responsible for repairing that particular part of the property anyway. For example even if a third person’s leaking washer has caused a ceiling to collapse the landlord will still be obliged to repair the ceiling because it is part of the structure and the landlord is obliged to repair it.
Often Defendants will obtain their own schedule of works from their own in house surveyors who seek to undermine the independent expert’s findings and try to substitute the expert’s views with their own. Whilst a surveyor employed by a Defendant can and often gives evidence of fact, they must not seek to give expert evidence where a single joint expert has been instructed.
Defendants suggest further investigations such as calcium carbide testing where samples of plaster are taken away for analysis or controlled wetting testing where a hose pipe is used to simulate rainfall. I can imagine that this type of damp consultancy can be very useful in some situations but I have to question what it actually adds where an expert has taken damp readings of up to 100% and the cause is relatively obvious. It can simply add further delay with the remedial works being exactly the same.
The issues that I have outlined in relation to expert evidence, causation and Defendant tactics are nothing new to any litigator. Housing disrepair claims do differ from other types of litigation. Negligence claims seek to establish that there is a duty of care, breach of contract claims can be in respect of isolated breaches of an agreement based on perhaps one misdemeanour or oversight. Housing disrepair claims in their nature are in some respects something of a hybrid. The principal claim is for breach of contact but in the sense that negligence by its definition is based on neglect or carelessness there is negligence too. We seek to establish that a landlord failed in the contractual obligations set down by them in their own tenancy agreements. There is no accident, no insurers, no oversight or careless action, no contributory factors, and usually no third parties. There is a simple failure to act. The failure continues over a prolonged period and the landlord continues to be aware of the tenant’s complaints and the inconvenience being caused to the point where no person or body could not be aware. Failure to act over a period of weeks may be a contractual failure but over a period of months and years there is also neglect and carelessness which means that there is negligence too.