Offsetting rent arrears because repairs haven't been done
Set-off is a defence to possession proceedings for rent arrears. It means that you accept you owe your landlord money, but you claim the right to set-off against that debt any money due from your landlord because of their failure to do repairs. This could reduce or clear your rent arrears.
When you can use set-off as a defence
Rent arrears can only be offset if the problem that needs repairing existed when your landlord made the possession claim against you.
If the problems happened after your landlord made a possession claim, you might not be allowed to use the landlord's failure to make repairs as a defence to the possession proceedings.
You'll also need to show that the set-off arises because:
- your landlord has broken your tenancy agreement by not doing repairs which they're responsible for, and
- the landlord has had notice of the repairs, and
- the landlord hasn’t done anything about the repairs within a reasonable period of time, and
- you’ve suffered loss and inconvenience as a result.
If your home has been damaged
Even if the damages haven't been valued by the court yet, you can still use set-off as a defence to possession proceedings for rent arrears.
If you successfully argue for set-off
The judge could still make a possession order if the damages aren’t enough to clear your rent arrears. This means that it’s very important for you to continue to pay your rent and an amount towards the arrears until you know the outcome of the possession hearing.
How you can raise the set-off defence
The defence should be raised in response to your landlord’s claim for possession. It will usually be accompanied by a counterclaim which explains that your landlord has failed in their repair obligations and the damage suffered because of this. You may need help from an adviser to do this.
If your tenancy agreement says you can't offset rent arrears
A term in a tenancy agreement which says that you can’t offset rent arrears is likely to be unfair and could be challenged.