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14 July 2015

Good Landlord Practice Series: Pre-action housing disrepair protocol

As with all information pertaining to occupation of residential premises, the regulation of the standard of properties remains important, not only for the benefit of the tenant but also for the landlord. This article aims to take a brief look at the current position in relation to this protocol.

The new pre-action protocol became effective from 6 April 2015 and it is important to note that it only relates to originating disrepair claims.  That is to say it does not apply to disrepair arising as a secondary matter, such as a counterclaim in a rent arrears possession case.

The relevant statues linked to disrepair claims are those arising under:

  • S11 of the Landlord and Tenant Act 1985;
  • S4 of the Defective Premises Act 1972.

Claims brought under the Environmental Protection Act are not covered by this protocol, as these claims are dealt with in the Magistrates’ Court as opposed to the County Court.

Record keeping – is it really that important?

Often the thorn in the side of most housing officers, detailed record keeping on tenancy files continues to be paramount and should be second nature for all involved in housing management.

Generally, any policy for retaining information should include a system for recording any complaints, follow-up contact, or action taken by the landlord in response.  Very often, claims can date back over a number of years and in that scenario, it can become very difficult to find the line between genuine disrepair and disrepair, which may have been caused by un-tenant like behaviour.

Records should even be kept detailing episodes when a tenant is failing to engage, as in the event of the matter going to court, this will count as evidence in favour of the landlord.

Just disrepair?

In some instances, a disrepair claim will also give rise to allegations of personal injury.  If this is evidenced by information from the complainant’s GP, then you need not follow the disrepair protocol.  However, in the event that a more detailed/complex medical report is required, then the personal injury protocol must be used in relation to that part of the claim.

Whilst often a difficult task, consideration must always be given to the possibility of settling any dispute without recourse to the court, which should always be seen as the last resort.  Failure to genuinely look at this as an option can be detrimental to both sides and if this information comes before the court, then sanctions can be applied.  Court time is both costly and in high demand, so parties are encouraged to be proactive rather than reactive in relation to claims brought under this heading.

Litigation begins:

Usually, the first formal notice that a landlord will receive is by way of letter from either the tenant or their solicitor.  Landlords should be alive to the fact that many tenants are now much more knowledgeable of their rights and will most likely have already sought legal advice in person, or indeed via the internet as to their claim.

Once contact is made, the clock effectively starts ticking in relation to the steps which have to be taken:

  • Most, if not all letters will require a copy of the tenancy file and any relevant repairs files and these must be provided within 20 working days of receipt.  There should be no exception assumed in relation to this request.

At this stage, the importance of accurate and consistent record keeping becomes apparent.  The expectation is that the information required will be readily to hand and so can therefore be easily reproduced and sent to the other side.  Very often, however, this is not the case and these requests for disclosure expose missing/incomplete information; failures to follow procedure; and general bad file maintenance.

It is generally acknowledged that it is, at this stage, that some landlords consider jettisoning documents from the files which they believe are in some way prejudicial to their position, particularly if those documents could be construed as having an ambiguous meaning.

Whilst some documents are subject to privilege and do not need to be disclosed to the other side, the rules are very clear in that a party must disclose documentation, whether it is helpful to their position or not.

On a practical point, disclosure is best left in the hands of your legal advisers, whose job it is to consider the file(s) in their entirety and who will then make the determination as to legitimate disclosure.

This is, however, by no means the end of the story in respect of the duty of disclosure (governed by S31 of the Civil Procedure Rules).  Even after initial (substantial) disclosure has taken place, the parties remain under a continuing duty and to that end, should a document come to light at a later date, if it is disclosable under the rules, then it must be produced to the other side.

In the event that either party believes that full and frank disclosure has not been given, then they have the right to apply to the court for an order requiring the other party to disclose the information.

In view of the action which needs to be taken, including compilation of the files for disclosure, preparing a full letter of response to the claim, the period of 20 days can pass very quickly.

It is therefore advisable that all landlords have officers who are specifically trained in relation to disrepair and the basics of a claim, as a delayed response could be the difference between settlement and the issue of proceedings.

Who are the experts?

The other main problematic issue for the landlord arises from the requirement to consider the instruction of a single joint expert.  This often proves to be a vexing issue, as landlords often lean towards the default adversarial position that each party should instruct their own expert to be on “their” side.

However, this almost the exact opposite of what the courts’ encourage.  Indeed, whenever possible, the parties should agree on a single joint expert, not least because:

  • It is less costly;
  • A jointly instructed expert is impartial and the respective parties are safeguarded by the declaration/oath that the expert is required to take whenever they produce a report to be used in evidence in court proceedings.

Either party can suggest an expert and it is up to the other side to confirm that they are happy to instruct that individual, or if not, that they propose the details of another expert who could be instructed.

It is advisable to raise any objections as soon as possible, as again if no response is received within 20 days, then the other side can proceed to instruct the expert without further recourse to you.

Legitimate concerns might be:

  • Level of expertise – it is incumbent upon the party suggesting an expert to also provide a copy of their (the expert’s) CV, which you should study carefully.  If the suggested expert for disrepair relating to mould is according to his CV a “specialist in building work” (although unlikely) and there is no reference to any expertise with disrepair generally and or he/she is not a damp expert of building surveyor, then it is perfectly legitimate to raise this as a concern;
  • Conflict of interest – if the expert suggested is “connected” to the other side, again unlikely but say for example is listed as a consultant on their website, it is legitimate to raise this as a concern and seek to agree the instruction of someone else.

The above examples are hypothetical extremes but the point being made is that the time to raise concerns is before instruction and so due diligence must be exercised.  It is not possible to cry foul once the expert has been instructed and you change your mind.

Another important point to note is that once the inspection has taken place and the expert has prepared their report, if jointly instructed, his/her fee becomes payable within the time frame indicated on their invoice, which will be apportioned on a 50/50 basis between the parties.

As to whom picks up the total cost of the bill, this will depend upon who is successful at the hearing.

If the tenant is successful, then the 50% portion of the fee that their solicitor paid in respect of the invoice will be “added” on to their legal bill of costs, which they will seek to “claim back” from the landlord.

If the landlord is successful, then it is usually more problematic, as whilst they can seek costs against the tenant, in reality, recovery does not often happen.  It is sometimes the case, however, that a tenant might (whilst not recovering the entire sum claimed) be entitled to a level of damages.  If this is the case, then a landlord can “set off” any costs against this sum, thereby reducing the amount eventually paid to the tenant.

The regulation of these types of claims is necessary, so as to try to ensure the smooth passage of disputes and where possible, to encourage the parties to act both fairly and expediently and more importantly, only pursue through the courts those matters which really cannot be resolved by any other means.

A salutary lesson for landlords is that of the cases which are pursued to court proceedings; a high percentage will settle before the final hearing, at which point the “cost” to the landlord will have increased substantially.  It will include of course the landlord’s own legal costs, any damages due to the tenant and undoubtedly their legal costs.

The position of the landlord can be vastly improved if it becomes second nature to maintain files and carry out the required checks/follow-up action when required and to respond quickly and fully to any concerns raised by their tenants.

To do otherwise leaves them potentially exposed to high value and even possibly exaggerated claims, which they may find difficult to defend at court and which could quite easily cost them much more than anticipated.