A Guide to the Pre Action-Protocol for disrepair claims

Landlords have an obligation to keep the property in a good state of repair. At the same time, tenants also have contractual obligations to use the property in a tenant-like manner. However, situations can arise where tenants and landlords may point the finger at each other when it comes to who’s obligations a repair falls under. This can lead to frustration and tenants taking steps to make a disrepair claim against the landlord. These steps begin with what is known as “Pre Action-Protocol for disrepair”.

What is the Pre Action-Protocol for Disrepair?

The protocol is a set of guidelines that all parties, including letting agents, must follow to take reasonable steps to resolve the conflict outside of court. These guidelines encourage discussion, settlement proposals and alternative dispute resolution. If utilised correctly, all parties can come to an understanding and avoid the time consuming and costly process of dealing with a disrepair claim.

What are the stages of the protocol?

Letter of claim – The tenant, usually with the assistance of housing disrepair solicitors, puts together a letter that sets out:

a) tenant’s contact details

b) details of defects

c) history of defects

d) details of previous notification of defects to the landlord

e) effects of defects on the tenant

f) personal injury (if relevant)

g) proposed experts and proposed instructions to experts

h) request for disclosure of documents from the landlord.

• Disclosure – Within 20 working days of receiving the letter of claim, the landlord then must respond including:

a) copies of all relevant records or documents requested

b) response to proposals for instructing an expert.

• Expert Inspection – If agreed by both parties, a single joint expert then attends the property and inspects the property’s condition. The expert will then produce a report outlining their findings and also produce a schedule of repairs.

• Agreement – Based on the expert report, the parties then must attempt to come to an understanding. If defects are reported in the property and they are the landlord’s obligation to repair as set out in the tenancy agreement, then the landlord should agree and arrange to make the repairs and vice versa. For example, if the issue is to do with insulation, this would usually be a landlord obligation, or if the issue is to do with plant growth in guttering, this may be a tenant obligation. Parties should rely on specific clauses in the tenancy agreement to determine this. If this is done reasonably, then the repairs needed are carried out and the tenancy can resume amicably. If not, then it is up to the tenant to take the matter further and make a claim to the court. The expert’s report and findings will be used as evidence in the claim.

Other considerations

Is very important to stay on top of any required repairs. This is because the tenant could either approach the local council and get an improvement notice served on the property, or bring the disrepair claim to the court. Both of these actions can jeopardise the potential to evict the tenant, if that is something that a landlord may be considering.

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