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 if any of the following applies:

• your landlord didn’t do the repairs

• your home is ‘unfit for human habitation’

This could reduce or clear your rent arrears.

Check if your landlord has to do repairs or if your home is unfit for human habitation.

When you can use set-off as a defence

Rent arrears can only be offset if the problem that needs repairing existed or if your home was unfit for human habitation 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 or make your home fit for human habitation as a defence to the possession proceedings.

You'll also need to show that the set-off arises because:

• your landlord has broken your occupation contract by not making your home fit for human habitation or not doing repairs which they're responsible for, and

• the landlord has had notice of the repairs or knew that your home was unfit for human habitation, and

• the landlord hasn’t done anything about the repairs or hasn’t made your home fit for human habitation 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.

• More about getting advice

If your written statement says you can't offset rent arrears

A term in a written statement which says that you can’t offset rent arrears is likely to be unfair and could be challenged. Check your written statement has a term saying you can't offset rent arrears.

If your written statement says you can’t set off rent arrears or doesn’t say anything about this, talk to an adviser.

Next steps

• Other options for private rented tenants to deal with repairs

• Other options for social housing tenants to deal with repairs

• Common repair problems