The Classic Disrepair Defence Fails

• Published date: 23 September 2022
• Subject Matter: Real Estate and Construction, Real Estate, Landlord & Tenant - Leases
• Law Firm: RFB Legal
• Author: Rudi Ramdarshan and Marissa Lawrence

Background

The firm was instructed by one of its portfolio landlords in respect of residential premises in Westminster. The premises was a flat located in a building owned by Westminster Council, and which was located within a conservation area. The client was the owner of a long lease.

The tenant had been occupying the property since 1997, at first under a fixed term assured tenancy, which upon expiry of the fixed term, became a statutory periodic assured tenancy. The tenant had raised issues of disrepair which resulted in the client deciding to decant the tenant and fully renovate the property.

Following the renovation, the tenant fell into arrears. In February 2018, the landlord served a section 8 notice on the tenant on the basis of rent arrears relying on ground 10. Following expiry of the notice, the tenant remained in arrears and possession proceedings were issued.

The Defendant's tactics

A common tactic by defendants when facing possession proceedings based on rent arrears is to raise allegations of disrepair and to seek to suggest that such a sum reduces or extinguishes the rental arrears. In practice, despite the Court having the power to order possession at a first hearing summarily when faced with an unmeritorious defence, Courts are reluctant to do so without a factual enquiry which often means requiring expert and factual evidence. This tactic can delay possession being granted for months if not years, all the while arrears are likely to continue to accrue. In addition, landlords are faced with having to shoulder the additional costs of a full trial.

In response to the claim for possession and arrears, the tenant issued a defence and counterclaim. The tenant included multiple claims within her counterclaim, with a large portion being dedicated to alleged disrepair at the premises and damages flowing from the landlord's alleged breach of duty under section 11 of the Landlord and Tenant Act 1987.

Throughout the progress of litigation, the landlord (through RFB and their agents) requested access to the premises in order to (1) investigate any alleged disrepair and (2) complete any remedial works required.

Despite the tenant granting access to their own disrepair expert and the landlord's expert, the tenant continuously refused access to the landlord on the grounds that she would need her belongings to be placed in storage at the landlord's expense. The tenant's belongings stored at the premises consisted of voluminous black bin bags, which, as...