Offsetting rent arrears because of disrepair
If your landlord is taking possession proceedings against you because of rent arrears, and there's disrepair in your home, you may be able to argue that the rent arrears should be set-off against the damages for disrepair.
This page explains more about the set-off defence and in what circumstances you can use it.
What is the set-off defence?
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 can you use set-off as a defence?
Rent arrears can only be offset if there was disrepair at the time when your landlord made the possession claim against you. If the disrepair happened afterwards and you ask for set-off in court, your landlord could argue that the matter should be heard separately and not used 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.
Do you have to know how much the damages for disrepair would be first?
Even though the damages haven't yet been valued by the court, this doesn’t prevent you from using set-off as a defence to possession proceedings for rent arrears.
Could you still be evicted for rent arrears?
Even if you successfully argue for set-off, if the damages aren’t enough to clear your rent arrears, the judge could still make a possession order. 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 can you 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.
What 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.