How to Defend Possession Claims: Landlord Strategies for Disrepair Defences

With limited property available to rent at affordable prices tenants are trying to defend possession claims. One way is to mount a disrepair defence and counterclaim in possession proceedings.

In this blog, our Landlord and Tenant Solicitors look at how tenant claims of disrepair can be used as a defence in possession proceedings, offering landlords practical advice on mitigating these risks.

Online and London-based Landlord and Tenant Solicitors 

For expert advice on landlord possession strategies call the landlord and tenant team at OTS Solicitors on 0203 959 9123 or complete our online enquiry form.

Claim and counterclaim

When possession of a rental property is sought through serving a Section 8 notice there is always a risk that the tenant will defend the claim. For example, by saying that rent arrears have been paid or that they had not breached the terms of their tenancy agreement. Other tenants may also counterclaim against their landlord, adding to the complexity of the possession proceedings.

Some tenants may have an arguable claim for disrepair that needs to be heard by the court but others counterclaim in the expectation that this will prolong the possession claim and enable them to stay in the rental property for longer. Delay can be of significant benefit when there are no other properties to rent in an area or when the homeless accommodation provided by the local authority is dire.

What about the litigation risk of claim and disrepair counterclaim? Sometimes it seems as if the landlord bears all the litigation risk.  If they lose the tenant gets to stay and the landlord pays the tenant’s damages claim and potentially their legal fees. If the landlord wins then the tenant faces eviction but may not have the income or assets to pay the outstanding rent, pay for damages for a trashed property (not covered by the tenant’s modest deposit) or a legal costs order (in cases where the court has the power to make a cost order against them in possession proceedings).

Disrepair Defence Solicitors understand that landlords have no choice other than to give a Section 8 notice in situations where their tenant isn’t paying the rent or is breaching the terms of their tenancy agreement. Landlord possession strategies are therefore needed to navigate the complexities of claim and counterclaim.

Disrepair as a defence

If the landlord’s claim for possession is based on rent arrears the tenant's only defence is that the rental property was in such property disrepair that their disrepair counterclaim should extinguish the rent.

Normally in disrepair as a defence counterclaim, the tenant is asking for:

• Specific performance – a court order requiring the landlord to sort out and rectify the disrepair within a court-ordered timescale
• Compensation for having to live in disrepair. This can be referred to as loss of amenity
• Full or partial wiping of the rent arrears so the tenant does not have to pay all or most of the arrears
• Personal injury damages if the tenant says they or their family have been made ill and suffered financial loss because of the disrepair
• Legal fees so their costs are covered

While it does not help a landlord to know the tenant strategy behind a disrepair counterclaim it may assist in understanding the rise in counterclaims.

Legal aid isn’t available in possession proceedings for rent arrears. However, a tenant can get legal aid (subject to merits and means testing) for a disrepair claim. Therefore, with a disrepair claim, the tenant gets the advantage of legal representation in the possession proceedings and can try to delay the possession claim with the complexities of a disrepair defence and the need for surveyor reports, interim directions hearings and a contested final hearing.

Win or lose, the tenant only actually loses if they have the money to pay the rent arrears and the landlord can get the money off them and payment of any cost order. The only satisfaction some landlords get is when a tenant is affected by a CCJ or bankruptcy.

If a tenant’s disrepair counterclaim is successful then the rent arrears may not be payable in full or part by the tenant. In addition, a court may order that the tenant can continue to occupy. The landlord can then only get the tenant out by starting further possession proceedings after sorting out any identified property repairs and then serving a further Section 8 notice – this strategy will only work if the landlord has fresh grounds for a possession order (such as further rent arrears or breach of tenancy agreement).

Landlord possession strategies in disrepair defence counterclaims

Disrepair Defence Solicitors recommend these landlord possession strategies:

1. Take legal advice early – when we say early, we mean very early. For example, when negotiating a tenancy agreement, a landlord can be advised to ensure that their tenancy agreement puts the tenant at risk of a cost order being made against them if they bring an unsuccessful small claim where costs aren’t normally ordered. A cost order can be made if it is a contractual term of the tenancy agreement. The threat of a cost order will potentially deter tenants who are working or who have some savings or assets who risk losing their disrepair counterclaim
2. Understand landlord rights and landlord repair obligations to avoid landlord disrepair disputes
3. Vet the tenant and take references to reduce the risk of possession proceedings being necessary. Where possible, require a guarantor who will have the means to pay outstanding rent even if the tenant doesn’t
4. Choose letting agents with care if you are going to task them with sorting out repairs to the property. To successfully defend a tenant’s disrepair counterclaim a letting agent needs to have photos of the state of the property at the date of the tenancy agreement, records of when tenants contacted them about disrepair and their response and use reliable contractors who are available and able to fix problems and notify if an issue needs escalating. For example, notifying if a damp and mould issue is due to the tenant not heating the property or drying washing indoors so the landlord can tell the tenant if the tenant is responsible for creating dampness to deter a disrepair claim
5. Choose contractors with care – anyone sent to a rental property needs to be aware that at some point in the future, there could be possession proceedings and a disrepair claim. Remarks about the boiler always breaking down for the previous tenants or similar comments don’t help
6. Keep records as every email or text could be important in defending a disrepair claim. A landlord is only liable if they are notified about an issue. Landlords therefore need to keep careful records of when they were told about problems and the action taken to show that they acted within a reasonable time frame. It helps in defending a disrepair counterclaim if a landlord can show that disrepair complaints were only made after the landlord complained about rent arrears or after the tenant was told they were in breach of their tenancy agreement. It is also essential to keep records if tenants refuse access as a landlord cannot be held responsible for disrepair if the tenant refuses reasonable requests for access to the property to fix the problem
7. Carry out periodic tenancy visits in accordance with the tenancy agreement and keep records and photographs. These visits help evidence that there were no disrepair issues
8. Be pragmatic as whilst landlords can get specialist legal advice on UK possession laws there are times when being pragmatic and settling a claim is the quickest way to gain possession and be able to re-let the property to a paying tenant or to get the property on the market for sale. If possession proceedings have been started a Part 36 offer may encourage early settlement
9. Be quick and serve the correct Section 21 or Section 8 notice and start possession proceedings as soon as possession is necessary and ensure a proactive and efficient Disrepair Defence Solicitor is appointed to push the proceedings through to a final hearing. Landlord and Tenant Solicitors specialise in landlord disrepair disputes and can advise if there are good grounds to apply to strike out the tenant’s disrepair as a defence
10. Be strategic in possession proceedings and eviction disputes. For example, in tenant defences involving disrepair, the choice of an expert to survey the property and the remit of their instructions can significantly assist a possession claim. In some situations, presenting overwhelming evidence at an early stage, rather than waiting for trial, can help put a stop to a tenant using disrepair as a defence in eviction disputes

Our Disrepair Defence Solicitors are available to advise on UK landlord obligations to reduce the risk of disrepair claims and successfully advise and represent landlords in possession and disrepair counterclaims.

Online and London-based Disrepair Defence Solicitors 

For specialist landlord and tenant legal advice call the experts at OTS Solicitors on 0203 959 9123 or complete our online enquiry form.

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