Disrepair Notices

Being Served on Letting Agents

Letting agent gets taken to court over disrepair notice by landlord!

We have recently been involved with a building dispute in the form of a disrepair notice where a letting agent has been implicated and had to instruct solicitors to defend them against a disrepair notice claim. The background to the case is fairly familiar to us now as we have dealt with a number of disrepair notices. As we speak we have had two instructions to carry out work relating to disrepair notices this week requiring legal advice and surveying advice in the form of preparation of schedules of conditions being prepared for court expert witness cases.

Disrepair Notice Scenario

In our experience the disrepair Notice Scenario is a housing benefit tenant, sometimes known as a DHSS tenant, (but by no means has to be either), who believes they have been dealt with unfairly by their landlord and have been put in contact with one of half a dozen solicitors who seem to be making their living from disrepair notices at the moment for tenants who often have the benefit of legal aid. We can't name them for legal reasons but some have got fairly unpronounceable names. Landlords, or in a recent case a letting agent, have to pay the bill to appoint their own solicitors and defend themselves using expert chartered surveyors who are able to prepare reports suitable for expert witnesses cases in court, either as advocates or independent chartered surveyors, neither of which are cheap due to the specialist nature of the work.

Increased workload in the disrepair notices field

We as chartered surveyors have noticed a marked increase in enquiries in relation to disrepair notices and an increase in workload with regards to carrying out expert witness reports for the disrepair notice market. We have spoken previously about the rights and wrongs of a tenant that hasn't paid their rent for many months being able to obtain legal aid and prosecute the landlord for works they haven't carried out, but this may be a very cynical view of the situation. We would give as an example in one case we came across rent hadn't been paid for years (we appreciate there may be many other things involved in the case), then being able to place a disrepair notice on the landlord to stop eviction who argues in many cases this is a stalling process which has resulted in action against the landlord and them being fined by the courts or making the commercial decision to not pursue the tenant because they don't have suitable evidence to substantiate what they may or may not have done. This has recently taken a new twist when not only has the landlord been taken to court but the letting agent as well.

Disrepair Notices, of course there is a requirement by the landlord to carry out repairs

We would equally argue that for a tenant that has been left in a property they are paying rent for (or not paying rent for) which has not been repaired and has then become a health hazard, a disrepair notice works very well. We were involved in one case where the tenant described the landlord as treating her as an animal. This is where the disrepair notice really does protect tenant's particularly vulnerable tenants.

What Landlords need to do to best defend yourselves if you have a disrepair notice served on you whether you are the landlord or the letting agent

We will start by giving a disclaimer and saying obviously every case is different and as the solicitors dealing with the disrepair notice or indeed dealing with any case would say the case turns on the facts of the case in question. However this is the general advice we feel currently is best for landlords and letting agents:

•  Have a Schedule of Condition carried out and an Inventory at the property on the day that you rent it. The Schedule of Condition we feel needs to be properly carried out and not by an amateur. The way the market is moving we feel the Schedule of Conditions are now required to be to the same standard as a commercial Schedule of Condition that we would find on an industrial building, office or shop unit. We were recently in discussions with a letting agent about this who to our surprise said it would be a good thing as it would remove any ambiguity. We were pleased that the Schedule of Condition got backing from the letting agent.

•  You need to have a system in place where you advise the tenants of their rights and responsibilities under the agreement, explain to them how to get the maintenance work and other work carried out.

•  You need to have a method of recording all calls you receive with regard to maintenance work and other work.

•  You need to have a way of showing what work you have or haven't carried out and the reasoning behind it.

•  In addition to this we believe you need to have annual Health and Safety inspection. This is over and above the Gas Safety Checks and the Electric Safety Checks that you may or may not be carrying out but should be carrying out!

•  You need a photographic record of checks that you have carried out and ideally photographs before and after any work that is carried out. This isn't hard with digital cameras available relatively cheap these days.

•  Ideally we believe this system needs to be computerised and we recently watched in horror as a letting agent went through two fairly large files with copies of correspondence that had been going on for the past four years. A computerised system would also be a lot nicer and kinder to trees and the environment!

•  In summary get organised.

Why has the letting agent been involved with the disrepair notice?

In this case it is a fairly common situation where the letting agent is letting to the Local Authority. They have a legal agreement in place with the letting agent. As part of this it requires the letting agent to carry out or ensure that it has carried out any maintenance issues required under the lease agreement. The Local Authority argue that this is not happening and as such the letting agent has a responsibility to the disrepair notice. Unfortunately for the letting agent the Local Authorities and Council's Housing Associations have a lot of funds available to them and they often have their own in-house legal departments. Even where you are in the right and prove yourself to be in the right there can be an expense associated with it.

Landlords and letting agents need to stay alert and get organised

This may all sound very confusing if you haven't been involved with a Disrepair Notice. The sort of things that come under the Disrepair Act are rising damp, wet rot, dry rot, condensation, cockroach and mice infestation, anything that means the property is deemed not fit to be habitable.

Usually these items of work require to be carried out by a Landlord under the terms of standard shorthold tenancy but it is also often the case on a licence which is sometimes given by a social housing landlord or Local Authority housing landlord where the tenants have a long term security. They then in turn can sub-contract, for want of a better term, the responsibility for carrying out the repairs to a letting agent. This is where a liability or risk is possible for the letting agent carrying out the work so it is very important that the letting agent and the landlord both fully understand who is doing what with regard to repairs.

Are you dealing with the cause or the effect identified in the disrepair notice?

We very frequently come across this problem where a well meaning landlord has instructed a builder who has gone into the property, even those who are used to carrying out maintenance on old and new properties and the builder has with all the goodwill in the world carried out a repair on the effect of the problem rather than the cause. An example of this that we come across frequently is condensation where a builder has perhaps cleaned the condensation and redecorated in a mould resisting paint and they may even have added extract vents into the walls or cleaned extract fans and got pull cords working again in bathrooms and kitchens. Unfortunately they haven't addressed the way the property has been used such as drying clothes inside on radiators, cooking which adds to the moisture in the air and causes condensation so before you know it, because the builder has not dealt with the cause of the problem, the effect of the condensation with the black mould is back. Having said that whether it should be up to the builder to deal with the cause is a completely different matter and perhaps something that the landlord, letting agent and the builder need educating on. We would refer you to our articles on condensation.

Environment Health Officer Surveys

We have come across a few environmental health officer surveys. These do need to be looked at and considered carefully. We would comment that they are often very well worded; some of them deal with quite technical issues. You do need to ensure that you understand exactly what points they are making and just as importantly your legal position on dealing with the matters.

Solicitors that are dealing with disrepair notices

There seem to be, as probably there is in every solicitor field, some solicitors that we come across more frequently than others who have started to specialise in this area. This in turn means that the solicitors representing you also need to be specialists in this area just as the chartered surveyors that are dealing with this need to be specialists in this area. We have also just come across a situation where the landlord to save money didn't wish us as chartered surveyors to speak to the solicitors which unfortunately has made life very difficult and we feel will probably end up costing just as much money if not more money as communication is one of the key things when dealing with a building dispute.

Independent Chartered Surveyors

If you truly do want to have an independent expert witness opinion from an independent chartered surveyor freephone us on 0800 298 5424. Many of our surveyors are members of the Independent Surveyors Association as well as being registered with the Royal Institution of Chartered Surveyors.

Commercial Property

If you have a commercial property, whether it is freehold or leasehold then sooner or later you may get involved with dilapidation claims. You may wish to look at our Dilapidations Website at www.DilapsHelp.com and for Disputes go to our Disputes Help site www.DisputesHelp.com .

We hope you found the article of use and if you have any experiences that you feel should be added to this article that would benefit others, or you feel that some of the information that we have put is wrong then please do not hesitate to contact us (we are only human).

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