Many tenants feel that it is within their rights to withhold their rent when their landlord is failing to carry out repairs to their property. Naturally, they feel aggrieved that they have to carry on paying the full amount of their rent for a property that is in disrepair. In many cases this leads to tenants withholding their rent payments and accruing rent arrears.
However, we would almost always advise tenants that they should not withhold their rent payments, as this is a very high risk strategy that should only be taken with legal advice.
As housing lawyers, we understand why tenants want to withhold their rent. Unfortunately we regularly see landlords either ignoring or delaying carrying out repairs, leaving the tenant feeling like the only power they have through the rental payments.
Withholding the rent is a bad idea for a number of reasons. A landlord can easily obtain a money judgement against a tenant who has breached their contract by failing to pay.
However, the main concern is that non-payment of rent can leave a tenant at risk of possession proceedings and ultimately losing their home. How this works in practice depends on the type of tenancy. If the landlord of an assured tenant can show that 8 weeks rent is unpaid at the date of the notice and at the date of the hearing they could rely on ‘Ground 8’ and obtain a mandatory possession order against the tenant. Court action can be taken just two weeks after a tenant is served with the notice.
A landlord of an assured shorthold tenant does not require reasons (known as grounds) to seek possession, and unpaid rent could spur a landlord on to seek possession using the accelerated (non-fault) procedure. This could also include a money claim against the tenant who would be left in debt as well as without a home.
In both of the circumstances set out above it is clear that non-payment of rent could leave a tenant at serious risk of losing their home.
The Right to Repair
Tenants do have some rights under common law to carry out repairs themselves and deduct the cost of the repairs from future rent payments. If the procedure is followed correctly, the tenant will have a complete defence to a possession claim on the basis of rent arrears arising from the deduction of repair costs from the rent. However, the procedure must be strictly complied with and the tenant must ensure that the landlord has had adequate notice and the opportunity to do the works themselves. It is always preferable to notify the landlord in writing and keep the evidence of all communication with the landlord, so that compliance with the procedure can be proven.
We would advise anyone wanting to follow the procedure to first seek specialist legal advice. In summary the procedural steps are:
- You must inform the landlord of the repairs and allow them a reasonable time to conduct the repairs. What is ‘reasonable’ will depend on the circumstances and will ultimately (if the landlord decides to take court action) be a matter for you to prove and the judge to decide. You should keep a record of all information you send to your landlord.
- If the landlord does not take any action you must then inform the landlord (preferably in writing) that you will be doing the repairs yourself unless the landlord complies with their obligation.
- A further reasonable period should then be allowed for the landlord to carry out the works.
- You should obtain three quotes for the works. The landlord should be invited to comment on the quotes and be afforded a final opportunity to carry out the repairs.
- You should then choose the lowest estimate and send the landlord the invoice for reimbursement.
- If no payment is received, only then may you deduct the cost of repairs from the rent.
These steps bring their own risks and liabilities. It may not be suitable for those claiming housing benefit, as the claim could be suspended until the issue is resolved. If housing benefit is paid directly to the landlord the procedure will not be available. It is most appropriate for small, low cost repairs, as the tenant will have to pay the contractor out of their own pocket initially.
It is important to note that the tenant will be liable for any works they have carried out to the property, including poor workmanship or damaged caused by the works.
Dealing with Major Disrepair
Rather than running the risks of withholding rent we would advise tenants to do the following:
- Keep paying your rent (albeit through gritted teeth);
- Keep reporting the disrepair to your landlord. If you do this in writing you have a paper trail of giving notice, so this is always advisable.
- Allow your landlord access to inspect the property and carry out repairs.
It is advisable to ensure that you are behaving as a reasonable tenant, even if the landlord is behaving unreasonably. If the matter ends up in court a judge may look more favourably on a tenant who has carried on paying rent, reporting problems and allowing access despite disrepair. The more reasonable the tenant looks the more unreasonable the landlord’s failure to carry out repairs will be.
And finally, if you are living with disrepair, seek legal advice. No tenant should have to live with disrepair and there are legal remedies open to you.