Proving disrepair claims
Disrepair claims are primarily brought to obtain an injunction to make a landlord carry out repair works. The secondary part of the claim is for compensation. Compensation is assessed on the basis of inconvenience caused by the lack of repairs to the extent that the tenant’s enjoyment of the premises and overall value of the tenancy has been diminished. Compensation is usually awarded as a percentage of the rent to reflect the diminution in the value or benefit of the tenancy to the tenant.
In order to establish liability in a disrepair claim a Claimant will need to show that the landlord has breached their repairing obligations by failing to remedy defects which they knew or ought to have known about within a reasonable time. Notice is therefore crucial to the claim.
In the early stages of a claim the repair records will be obtained and these will show the notice that a landlord has been given. There can be several different ways in which we can show that a landlord has had notice of the defects. The most obvious is that the tenant has made complaints. These may have been made online, by phone, in person or in writing and it is therefore crucial to ensure that the records are complete and include records held in the landlord’s databases and from their call centre. The paper file held by the housing office can often be of little or no relevance to the claim without the actual call logs and repairs spreadsheets.
Clients often keep copies of letters of complaints that they have made and may have approached their MP for assistance or pursued the complaints procedure or arbitration. Other residents may also have made complaints about the same defects. Third parties such as GP’s, health visitors or social workers may have made complaints on a tenant’s behalf. Documents relating to these complaints should be obtained. Depending on the type of case and nature of the property records to the entire block of flats or flats above and below may be relevant. This is particularly so in cases of pest infestation.
It is important to make sure that all documents have been disclosed by the landlord before assessing the likely value of compensation. If the client produces documents that are not included in the documents disclosed by the landlord this is an indication that other documents are likely to be missing and a court application for pre-action disclosure may be necessary to compel the landlord to provide all relevant documents to assess the claim. Missing documents can significantly reduce the period of claim and will have an impact on likely compensation overall.
Where repair records appear to be complete there are often gaps of several months or even years between complaints. The inference is that the repair had been carried out or that a defect was not causing too much inconvenience because no complaints were being made. However it could have been the case that the landlord said that the repair would be carried out and the tenant stopped complaining. It could also be because the tenant gave up complaining for a while out of frustration because nothing was being done. It could simply be due to poor record keeping. It is therefore crucial to obtain clear instructions from the client and get their version of events during this period. A claimant will be able to give evidence in court as to their account of what happened during any periods where there are no complaints on record.
Where there is a lack of records there are other ways to show that a landlord knew about the defects. A landlord will have implied notice of disrepair in respect of the parts that it has retained including communal parts. A landlord will usually also have carried out a void inspection of the property before letting it and there will usually be records of the inspection which may show that the defect existed at the commencement of the tenancy and the landlord was aware of it. Various contractors will inspect the premises at intervals during the tenancy, for example gas safety inspections and routine pest treatment and it can be implied that if the landlord’s agents inspected the premises and saw the defects then the landlord has had knowledge of this.
If you have been making complaints to your landlord about repairs and feel that your landlord is not taking sufficient action please contact us.