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Taking court action because of disrepair

This advice applies to Wales

If you’ve reported repairs to your landlord and they haven’t done anything, then you may be thinking about taking them to court.

Taking court action can be costly and time consuming and should only be taken as a last resort. This page explains more about what's involved, what evidence you'll need, and what the court has the power to do.

When should you take court action for disrepair?

Before deciding whether or not to take your landlord to court for disrepair you should:

  • check your landlord is responsible for the repairs
  • check you've reported the problem (at least once) and given your landlord a reasonable amount of time to do the work
  • think about whether you'd be at risk of eviction if you're a private rented tenant,
  • think about whether you've explored other options to resolve the problem first
  • look at what evidence you have to help support your case
  • think about whether you can afford to take court action if you can't get help with legal costs.

If you think that taking court action is an option for you, you'll need the help of a specialist adviser or a solicitor.

Can you afford to take court action?

Taking court action can be expensive. Depending on your income and the nature of your case you may be eligible for help with legal costs under the legal aid scheme. From 1 April 2013, legal aid is only available where disrepair is a serious risk to your's or a family member's health and safety.

If you don't qualify for legal aid and your claim could be heard in the small claims court, then you'd only have to pay a fixed fee. Small claims is one of three court routes that a disrepair case can follow. These routes are called tracks. The other tracks are the fast track and the multi-track.

For disrepair claims where the only claim is for compensation (damages), the small claims limit of £10,000 applies. However, if a claim includes an application for an order for repair work it will only be allocated to the small claims track if both the:

  • estimated damages are less than £1,000, and
  • estimated cost of the repair work is less than £1,000.

If either amount is expected to be more than £1,000, the court will normally allocate the case to the fast track.

If you don't qualify for legal aid, you should check any insurance policies or credit card agreements you have as these may include legal expenses insurance. Trade unions may also provide legal advice on matters other than work-related issues.

Some solicitors may also offer 'no win, no fee' agreements as a way of funding a disrepair claim.

What can the court do?

The court can make your landlord do the repair work by making:

  • an order called an order for specific performance, or
  • an injunction called a mandatory injunction.

The court also has the power to make a declaration that you can do the repairs yourself and deduct the cost from future rent.

If your landlord doesn't do the repair work specified in the order or injunction, they can be fined or imprisoned.

Compensation

The court can also award compensation called damages. Damages put you back in the financial position you would have been in had it not been for the disrepair. You can get damages if:

  • you've been injured or made ill
  • your belongings have been damaged or destroyed
  • you've been inconvenienced and unable to use your home in the normal way.

Evidence to help support your case

Before taking court action, you'll need to have information and evidence to help support your case. This includes:

  • a copy of your tenancy agreement
  • copies of any correspondence between you and your landlord about the disrepair
  • photographs of the disrepair
  • a list of or photographs of belongings that have been damaged because of the disrepair and copies of receipts if you had to replace damaged items
  • copies of medical reports or a note of medical visits if you were injured or made ill by the disrepair
  • any expert evidence you have, for example, reports from a surveyor or an Environmental Health Officer.

If you're entitled to legal aid, it may cover the cost of some expert reports. If you're not entitled to legal aid you have to pay for the cost of any reports yourself.

Pre-action protocols

There's a special procedure that must be followed before taking court action for disrepair. This is called the Pre-Action Protocol for Housing Disrepair Cases.

It sets out specific procedures and timetables that must be followed from when a claim is started. It aims to encourage you and your landlord to resolve the problem without having to go to court.

The protocol suggests that you and your landlord should consider some form of alternative dispute resolution (ADR) before going to court, such as mediation.

The protocol doesn't apply to counterclaims. For example, if your landlord takes possession proceedings against you for rent arrears and you defend the claim by asking the court to 'set off' your right to compensation for the counterclaim against any arrears.

What do you have to do under the protocol?

Under the protocol, you have to send your landlord a letter called an early notification letter, warning them of possible court action. This is in addition to you having reported the repairs and having given your landlord a reasonable time to do the work. The letter is available in the protocol.

Your landlord has 20 working days to respond. If their response isn't satisfactory, or the problem isn't resolved, you can apply to the county court.  A copy of the protocol is available from the Ministry of Justice website.

Personal injury protocol

There's also a special procedure that must be followed if you decide to make a personal injury claim against your landlord because you've been injured as a result of disrepair. It's called the Pre-Action Protocol for Personal Injury Claims.

Time limits for taking court action

In most cases, you have to take court action within six years. If the court action is based on your landlord not meeting the terms of your tenancy agreement this is called a breach of contract. In these circumstances, the six years begin when you tell your landlord about the disrepair and they don't do anything about it in a reasonable time.

If the court action is based on negligence or nuisance, the six years starts when the damage to property or an injury took place.

In personal injury cases, the limit is three years from the date of the injury.

Next steps

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