Common Residential Landlord and Tenant

Disputes

Elizabeth Dwomoh

10 April 2019

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Introduction

1. This seminar aims to provide an overview of some of the most common disputes

between residential landlord and tenants. It also aims to provide some practical tips

for tenants faced with such disputes.

2. During the course of this seminar the following three areas will be covered:

(a) Tenancy deposits

(b) Disrepair in residential tenancies

(c) Unlawful eviction of an assured shorthold tenant

A. Tenancy deposit

3. The tenancy deposit protection scheme for assured shorthold tenants is set out in

ss.212 – 215 of the Housing Act 2004 (“the HA 2004”). The scheme came into force

on 6th April 2007. It was envisaged that the scheme would protect tenants from

unscrupulous landlords who retained or made unlawful deductions from deposits.

Unfortunately, this aim has not always been realised.

4. The most common problems faced by tenants in relation to their deposits arise when

landlords:

(a) fail to protect a deposit upon receipt;

(b) fail to release a deposit after the end of the tenancy; and

(c) unlawfully deduct sums from the deposit.

Failure to protect the deposit upon receipt

What is a landlord supposed to do on receipt of the deposit?

5. Under the Scheme, where a landlord receives a tenancy deposit from the tenant, the

landlord is required to:

protect the deposit by registering it with an authorised scheme;1

comply with the initial requirements of the authorised scheme within 30 days of

receipt of the deposit;2

serve on the tenant the prescribed information3 within 30 days of receipt of the

deposit.4

1HA 2004, 213(1). The available schemes are currently: (a) Deposit Protection Service (DPS), (b) My Deposits and (c) The Dispute Service (TDS). 2HA 2004, s.213(3)

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6. The prescribed information must include:

(a) the name, address, telephone number, e-mail address and any fax number of

the scheme administrator of the authorised tenancy deposit scheme applying

to the deposit;

(b) any information contained in a leaflet supplied by the scheme administrator to

the landlord which explains the operation of the provisions contained in

sections 212 to 215 of, and Schedule 10 to, the Act;

(c) the procedures that apply under the scheme by which an amount in respect of

a deposit may be paid or repaid to the tenant at the end of the shorthold

tenancy (“the tenancy”);

(d) the procedures that apply under the scheme where either the landlord or the

tenant is not contactable at the end of the tenancy;

(e) the procedures that apply under the scheme where the landlord and the

tenant dispute the amount to be paid or repaid to the tenant in respect of the

deposit;

(f) the facilities available under the scheme for enabling a dispute relating to the

deposit to be resolved without recourse to litigation; and

(g) the following information in connection with the tenancy in respect of which

the deposit has been paid—

(i) the amount of the deposit paid;

(ii) the address of the property to which the tenancy relates;

(iii) the name, address, telephone number, and any e-mail address or fax

number of the landlord;

(iv) the name, address, telephone number, and any e-mail address or fax

number of the tenant, including such details that should be used by

the landlord or scheme administrator for the purpose of contacting the

tenant at the end of the tenancy;

(v) the name, address, telephone number and any e-mail address or fax

number of any relevant person;

(vi) the circumstances when all or part of the deposit may be retained by

the landlord, by reference to the terms of the tenancy; and

(vii) confirmation (in the form of a certificate signed by the landlord) that—

(aa) the information he provides under this sub-paragraph is

accurate to the best of his knowledge and belief; and

3 Housing (Tenancy Deposits) Prescribed Information Order 2007, para.2. 4 HA 2004, s.213(5) & (6)

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(bb) he has given the tenant the opportunity to sign any document

containing the information provided by the landlord under this

article by way of confirmation that the information is accurate

to the best of his knowledge and belief.

7. If a fixed term Assured Shorthold Tenancy (“AST”) is renewed or becomes a

statutory periodic tenancy, on expiry of the fixed term, the landlord is no longer

required to re-protect the deposit or re-serve the prescribed information. This applies

if on or after 6th April 2007, the deposit was properly protected and the Prescribed

Information served at the outset.5

What can a tenant do to verify if the deposit is protected?

8. If a tenant has not been provided with a deposit protection certificate, a tenant should

be advised to check online with their purported scheme provider. A tenant can also

directly telephone the purported scheme provider to verify if their deposit has been

protected.

Sanctions for non-compliance by a landlord

9. Since 6th April 2007, if a landlord has failed to comply with his or her obligations

under ss.213(3) and 213(6) of the HA 2004, a tenant can make a claim for payment

of between one to three times the value of the deposit.6

10. The Court can also order repayment of the deposit directly to the tenant or payment

into an authorised scheme.7

11. Even when the tenancy has ended, the Court must order the landlord to pay between

one to three times the value of the deposit to the tenant, and if so minded, the

repayment of the deposit to the tenant.8

12. Further, even if a deposit was paid before 6 April 2007, a landlord is barred from

serving a s. 21 notice unless the deposit has been protected9 or returned to the

tenant.

5 HA 2004, s.215B. 6 HA 2004, s.214. 7 HA 2004, s.214(3). 8 HA 2004, s.214(2A).

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Failure to release a protected tenancy deposit at the end of the tenancy

13. Subject to any lawful deductions the landlord must return a tenancy deposit to the

tenant at the end of the tenancy.

14. Even if the tenant paid the deposit to the landlord’s agent, the landlord remains liable

for its repayment. An agent is required to disclose to the tenant the name and

address of the landlord within 21 days of receiving a written request from the

tenant.10

15. If, after contacting the landlord directly, the tenant is still unable to obtain a refund of

the deposit, the tenant should verify if he or she is able to seek redress under the

scheme in which the deposit is protected.

16. All of the deposit schemes offer a binding alternative dispute resolution (ADR)

service to resolve these types of disputes. Both parties must consent to ADR before

the procedure is engaged.

17. If the landlord fails to consent to ADR, the tenant can issue a small claim (if the value

of the deposit is below the small claim tack limit of £10,000). As with most claims,

the tenant should serve the landlord with a letter before action. At a minimum, the

letter should set out (a) when the deposit was paid, (b) how it was paid, (c) the

amount paid and (d) the amount to be refunded. The landlord should usually be

given 14 days to respond to the claim.

18. If the landlord fails to respond in a positive manner, the tenant will have to consider if

he or she will issue formal proceedings to recover the deposit. A tenant should be

warned that there is no guarantee he or she will succeed in recovering all or some of

the deposit.

Unlawful deduction from a protected tenancy deposit

19. A landlord is entitled to legitimately deduct sums from a tenancy deposit for items

such as unpaid rent, cleaning and damage beyond fair wear and tear.

9 HA 2004, s.215; giving effect to the Court of Appeal decision in Charalambous and Karali v Ng and Ng [2014] EWCA Civ 1604. 10 Landlord and Tenant Act 1985, s.1

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20. If the tenant believes an unlawful deduction has been made, he or she should write

to the landlord requesting an itemised bill setting out each item that was deducted

from the deposit and the cost of the same. If available, the tenant should also

request copies of receipts.

21. If a response is received from the landlord, the tenant should again write to the

landlord setting out the reasons why he or she believes that no deductions or certain

deductions should not have been made. The tenant should also indicate how much

of the deposit he or she believes is refundable. The landlord should be given at least

14 days to respond.

22. If the tenant does not respond in a positive manner, the tenant can either attempt

ADR with the landlord or failing that issue a claim in the County Court.

B. Disrepair in residential tenancies

23. In respect of disrepair to their property, a tenant can bring a civil claim against his or

her landlord if they can demonstrate that there has been a breach of a contractual or

statutory repairing obligation. The most common repairing obligations can be found

in:

(a) The contractual repairing covenant in the lease;

(b) Section 11 of the Landlord and Tenant Act 1985 (“section 11”); and

(c) Section 4 of the Defective Premises Act 1974.

24. The most common claims brought by tenants for disrepair arise from breaches of the

contractual repairing covenants in their leases or under section 11. Most landlords

try and limit their contractual repairing obligations to their obligations under section

11.

25. To succeed in a claim for disrepair against a landlord under section 11, a tenant must

establish the following three elements:

(a) Breach of the statutory repairing covenant;

(b) Notice of the breach; and a

(c) Failure to repair the breach within a reasonable period of time, see O’Brien v

Robinson [1973] AC 912.

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(a) Breach of section 11

26. Section 11 of the Landlord and Tenant Act 1985 (“section 11”) provides:

11.— Repairing obligations in short leases.

(1) In a lease to which this section applies (as to which, see sections 13 and 14)

there is implied a covenant by the lessor—

(a) to keep in repair the structure and exterior of the dwelling-house (including drains,

gutters and external pipes),

(b) to keep in repair and proper working order the installations in the dwelling-house

for the supply of water, gas and electricity and for sanitation (including basins, sinks,

baths and sanitary conveniences, but not other fixtures, fittings and appliances for

making use of the supply of water, gas or electricity), and

(c) to keep in repair and proper working order the installations in the dwelling-house

for space heating and heating water.

Complaints which may fall out of section 11

27. The following are examples of complaints which may fall outside the scope of section

11:

(a) Damp which has not arisen from a breach of covenant. In Southwark v

McIntosh11 it was held that a tenant must establish that damp arose from a

breach of covenant. Breach of covenant may include a rotting door which has

caused the water ingress, see Stent v Monmouth District Council12, or rotting

window frames.

(b) Asbestos: the mere presence of asbestos as part of the fabric of the building

will not be a breach of section 11 unless there is disrepair.

(c) Infestations: e.g. mice, bed bugs. Again, in the absence of a structural defect

which has caused the infestation, there will be no breach of section 11.

(b) Notice of the Breach

28. The landlord will usually have knowledge, from having been notified directly by the

tenant. A landlord will also have notice of the breach if one of its agents has notice

e.g. workmen and housing officers.

11 (2002) EG 164 12 (1987) 19 H.L.R. 269, (1987) 54 P. & C.R. 193

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29. The information that the tenant gives to the landlord must put a reasonable landlord

on enquiry about whether works are needed.

30. In order to prove that notice of the breach has been given, the following is advised:

(a) Letters or emails to the landlord giving a full description of the disrepair alleged

and attaching photographs, both of the disrepair, and also of any items that have

been damaged as a result of the disrepair. Copies of all letters and email should

be retained.

(b) Any telephone calls made by a tenant to a social landlord should be logged on

the housing file. Ask for a full copy of the housing file if notice is disputed.

(c) Reasonable Time

31. There is no breach until “a reasonable time has elapsed in which the repair could

have been carried out” see: Calabar Properties v Sticher [1984] 1 WLR 287.

32. What constitutes a reasonable period of time will depend on the nature of the defect

and other surrounding facts.

33. The Schedule to the Secure Tenants of Local Housing Authorities (Right to Repair)

Regulations 1994 (SI 1994/133) gives the following examples of what constitutes a

reasonable period of time for the following defects:

Defect Prescribed period (working days)

Leaking roof 7

Toilet not flushing (where there is no

other working toilet in the dwelling-

house)

1

Total or partial loss of space or water

heating between 31st October and 1st

May

1

Total or partial loss of space or water

heating between 30th April and 1st

November

3

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34. A landlord, having been put on notice, may rely on the tenant’s failure to provide

access, as a defence to a claim for damages for disrepair.

What can a tenant do if a landlord does not undertake repairs?

35. A tenant should never withhold rent on the basis that a landlord is refusing to carry

out repairs and has no right in law to do so. Withholding rent will invariably lead to

breaches of the tenancy agreement relating to the payment of rent, and the risk of

possession proceedings.

36. However, the following are possible options:

(a) Asking the landlord for a reduction in rent until the repairs have been

undertaken.

(b) Contacting the local authority’s Environmental Health Office to ask if it will

inspect the property (having informed the landlord in advance of the intention to

do this). If there is a hazard to the tenant’s health, or risk to safety, the local

authority may serve an improvement notice, specifying the date by which works

must start, and the date by which works must be completed. If the landlord

fails to carry out the work, the local authority can carry out the work and claim

the cost back from the landlord.

(c) Undertaking the repairs at the tenant’s own expense, and deducting the cost of

the repairs from the rent. However, precaution is advised if this route is taken.

The tenant should write at least two letters to the landlord informing them of the

disrepair, a further letter giving the landlord 3 quotes for the work, and a further

letter setting out that the tenant will use the cheapest contractor if the landlord

fails to respond or fails to provide an alternative contractor.

(d) Bringing a claim in the County Court for specific performance and damages for

the disrepair.

Homes (Fitness for Human Habitation) Act 2018

37. On 20 March 2019 the Homes (Fitness for Human Habitation) Act 2018 (“the 2018

Act”) came into force. It amends fitness for human habitation provisions contained in

the Landlord and Tenant Act 1985 (“the 1985 Act”). The 2018 Act provides tenants

with improved enforcement mechanisms to force their landlords to deal with

dangerous and unhealthy housing conditions.

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38. The new provisions apply to dwellings let “wholly or mainly for human habitation” and

the lease is for a term of less than 7 years or is a lease for a secure, assured or

introductory tenancy for a fixed term of 7 years or more13.

39. The 2018 Act inserts a new section 9A into the Landlord and Tenant Act 1985. It

provides that

(1) In a lease to which this section applies of a dwelling in England (see section

9B), there is implied a covenant by the lessor that the dwelling—

(a) is fit for human habitation at the time the lease is granted or otherwise

created or, if later, at the beginning of the term of the lease, and

(b) will remain fit for human habitation during the term of the lease.

40. By virtue of ss.9A(6) of the 1985 Act, the implied covenant that the landlord will

ensure that the property is fit for human habitation will extend to common parts of a

building as well.

41. In determining whether a property is fit for human habitation, s.10 of the 1985 Act

provides:

“(1) In determining for the purposes of this Act whether a house[or dwelling is unfit

for human habitation, regard shall be had to its condition in respect of the

following matters—

repair,

stability,

freedom from damp,

internal arrangement,

natural lighting,

ventilation,

water supply,

drainage and sanitary conveniences,

facilities for preparation and cooking of food and for the disposal of waste

water;

in relation to a dwelling in England, any prescribed hazard

13 Landlord and Tenant Act 1985, s.9B.

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and the house or dwelling shall be regarded as unfit for human habitation if, and only

if, it is so far defective in one or more of those matters that it is not reasonably

suitable for occupation in that condition.

(2) In subsection (1) “prescribed hazard” means any matter or circumstance

amounting to a hazard for the time being prescribed in regulations made by

the Secretary of State under section 2 of the Housing Act 2004.”

42. The prescribed hazards include excess cold, damp and mould growth and pests and

refuse.

43. Subsections 9A(2) and 9A(3) of the 1985 Act, exempt a landlord from liability where,

for example, the unfitness is wholly or mainly attributable to the tenant’s own breach

of covenant or the tenant has not used the property in a tenant-like manner.

C. Unlawful eviction of an assured shorthold tenant

44. Under the Protection from Eviction Act 1977 (“the PEA 1977”) the eviction of a

residential occupier is a criminal offence.14

45. In civil proceedings, a private landlord can only obtain possession by following the

correct legal steps; namely, service of the relevant notice (s.21 notice or a s.8

notice), obtaining an order for possession and execution of the warrant for

possession by the bailiff. Any attempt at self-help by the landlord could result in a

claim under s.27 of the HA 1988 for unlawful eviction. Other common law and

contractual claims may also be pursued in tandem e.g. damages for breach of the

covenant for quiet enjoyment.

46. An assured shorthold tenant who is illegally evicted by his or her landlord can claim

damages for unlawful eviction under ss.27 of the HA 1988.

What is an unlawful eviction under s.27 of the HA 1988?

47. Under s.27 of the HA 1988 an unlawful eviction occurs when the tenant establishes

that the landlord has:

14 PEA 1977, s.1(4) – a fine or up to 2 years imprisonment on conviction on indictment. A fine or up to 6 months imprisonment on summary conviction.

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(a) unlawfully deprived him or her (as a residential occupier of the property) of

the of whole of the property, and/or

(b) carried out acts causing him or her (as a residential occupier of the property)

to give up his or her residential occupation of the property.

48. Under s.27(9) of HA 1988 a “residential occupier” is given the same meaning as

under s.1 of the PEA 1977; namely,

“a person occupying the premises as a residence, whether under a contract or by

virtue of any enactment or rule of law giving him the right to remain in occupation or

restricting the right of any other person to recover possession of the premises.”

What acts amounts to an unlawful eviction under s.27 of the HA 1988?

49. The following acts can amount to an unlawful eviction by a landlord or his agent:

(a) the threat or use of force

(b) changing the locks at the front of the property

(c) locking parts of the property thereby denying access

(d) denying a tenant the right of re-entry to the property

50. A landlord can defend a claim for unlawful eviction by proving that at the material

time the alleged unlawful acts were committed, the landlord believed or had

reasonable cause to believe the tenant no longer resided at the property.15

Remedies for unlawful eviction

51. An award of damages for unlawful eviction under the HA 1988 can be modest in

respect of an AST due to the lack of security of tenure. The measure of damages is

the difference between:

(a) market value of the Proposed Defendants’ freehold interest; and

(b) the market value of the Proposed Defendants’ freehold interest subject to an

assured shorthold tenancy.16

52. As well as issuing a claim for damages, the tenant may wish to seek an injunction to

regain entry into the property. If, however, a the tenant regains entry into the

15 HA 1988, s.27(8) 16 HA 1988, s.28

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property before his or her claim is disposed of, the tenant will no longer be entitled to

damages under s.27 of the HA 1988.17

53. It must also be borne in mind when advising that a tenant who refuses a genuine

offer of reinstatement before proceedings are issued is likely to have his or her

damages reduced for unreasonable behaviour.18

ELIZABETH DWOMOH

elizabethdwomoh@lambchambers.co.uk

Lamb Chambers

Temple

London

EC4Y 7AS

This paper and the associated talk are provided for training purposes only. They do not constitute legal advice and liability for any reliance placed on them is disclaimed.

17 HA 1988, 27(6) 18 HA 1988, 27(7(b)