What is disrepair?
Housing disrepair means a rented property that requires repair for it to be safe and suitable for tenants to live in. This includes the condition of the property and its utilities.
Who is responsible?
Both tenants and landlords have a duty of care towards the property.
Tenants are responsible for the general day to day upkeep of the property and those which are contained within their tenancy agreement. At the end of the term, the tenant will also have to observe repair and decoration covenants during the term of the lease.
A tenancy will often include a provision allowing the landlord to enter the property (on giving reasonable written notice to the tenant) to inspect the property and to ensure that the tenant is complying with their obligations during the term.
Landlords have a far greater responsibility and are responsible for maintaining various things such as:
- The structure and exterior of the property. This includes walls, foundations, roof drains, pipes windows and doors.
- Utilities such as water, gas and electrical wiring
Landlords must also ensure that gas safety checks are undertaken, and smoke alarms are fitted within the property. Carbon monoxide detectors are not currently compulsory, but regulations are being introduced to Section 91 of the Renting Homes (Wales) Act 2016 which will make this compulsory when enforced.
When a landlord is alerted to a problem, they must carry out the repairs as soon as reasonably practical. If a landlord fails to do so a tenant could claim compensation for the damage any breach of duty may have caused.
If a tenant has reported repairs to a landlord, and they have not taken action within a reasonable amount of time, the tenant may be able to claim against the landlord for breach of their obligations under the tenancy.
Before taking court action, the tenant must follow the Pre-Action Protocol for Housing Disrepair Cases Wales (the Disrepair Protocol). This protocol applies to disrepair claims in Wales only. In accordance with the Disrepair Protocol, the following steps must be taken:
- The tenant should serve a letter of claim on the landlord at the earliest reasonable opportunity. If the repairs are urgent, the tenant should consider serving an early notification letter on the landlord prior to serving a letter of claim. The Disrepair Protocol confirms the matters that should be included in a letter of claim.
- The landlord must respond to the letter of claim within 20 working days of receipt. Receipt is deemed to take place two days after the date of the letter of claim. Failure by the landlord to respond to the letter of claim in time or at all is regarded as a breach of the Disrepair Protocol and means that a tenant is then free to issue court proceedings.
- Potentially, the parties can agree to a single joint expert providing a report or an agreed schedule following a joint inspection of the property. Paragraph 7.1 of the Disrepair Protocol provides detailed guidance on the instruction of experts. Paragraph 7.7 of the Disrepair Protocol also provides guidance on agreeing terms and fees for instruction of the expert.
- The landlord must also provide further information to include whether they admit liability and if necessary, a schedule of intended works, any offer of compensation or any offer for costs. This information must be provided either within the landlord’s response to the letter of claim, or within 20 working days of receipt of the expert’s report or schedule (if applicable).
If the tenant’s claim is settled via the Disrepair Protocol on terms that justify bringing the claim, the landlord should pay the tenant’s reasonable costs or out of pocket expenses.
If the dispute does not settle via the Disrepair Protocol, the tenant can take court action against the landlord. The tenant must take court action within six years from when they inform the landlord about a problem they should repair, and they do not do anything about it in a reasonable time.
Remedies for the tenant
If a court claim against the landlord is successful, the court can award the following remedies to the tenant:
- Require the landlord to carry out the repairs by making an order for specific performance or a mandatory injunction; Declare that the tenant can carry out the repairs and deduct the cost of those repairs from future rent; or
- Award damages to put the tenant back in the financial position they would have been in had the landlord made the repairs when they should have done. The tenant can receive damages if they have been injured or made ill as a result of the landlord’s breach, their belongings have been damaged or destroyed, or if they have been inconvenienced and unable to use their home in the normal way.
What legislation applies?
Local authorities have functions in relation to ensuring that buildings used for housing are of an acceptable standard.
Part 1 of the Housing Act 2004 (HA 2004) introduced the Housing Health and Safety Rating System (HHSRS). The HHSRS covers a wide range of housing defects, and is much wider in coverage than its predecessor, the fitness for human habitation standard under the Housing Act 1985, which only covered a limited number of housing defects.
Part 1 of the HA 2004 relates to the enforcement of standards in the private sector. Standards in local authority housing are dealt with in different ways, for example under the Environmental Protection Act 1990.
The HHSRS is a means of providing a risk assessment of hazards in residential premises. There are two categories of hazard set out in s2 of the HA 2004
A hazard is any risk of harm to the health or safety of an actual or potential occupier of a dwelling or a house in multiple occupation (HMO, see Part 2 of the HA 2004) which arises from a deficiency in the dwelling or HMO or in any building or land in the vicinity (whether the deficiency arises as a result of the construction of any building, an absence of maintenance or repair, or otherwise) (see section 2(1) of HA 2004).
A local authority must take enforcement action where it considers that a category 1 hazard exists and may take action where it considers a category 2 hazard exists. There are several types of enforcement action that can be taken by a local authority, depending on the circumstances:
- serving an improvement notice;
- making a prohibition order;
- serving a hazard awareness notice;
- taking specified emergency measures;
- demolition orders;
- slum clearance orders.
Provision is also made in Part 1 of HA 2004 in relation to appeals and in relation to guidance that can be issued by the Welsh Ministers on the exercise of a local authority’s enforcement action functions.
Once the new regime under Renting Homes (Wales) Act 2016 is in force, there are fundamental provisions which must be incorporated into all occupation contracts as fundamental terms.
The Welsh Ministers may by regulation, impose requirements upon a landlord regarding whether a property is fit for human habitation.