In the vast majority of leases, the landlord is tasked with repairing and maintaining the exterior, structure and common parts of a building which has been divided into flats. The leaseholder for each flat will then be responsible for the interior of their flat, with the terms of the lease serving to clarify the obligations of each party. In theory, this is a well-practiced system that shouldn't lead to many (if any) disputes.
However, despite the existence of the lease and the clarity of its terms, there may still be times when the landlord has failed to comply with the obligations he is under to make repairs for a variety of reasons. If this occurs, the leaseholder may wish to make a claim for a court order and/or compensation.
In cases like these, the Housing Disrepair Protocol should be followed. The Protocol tends to apply mainly to lettings tenants but also applies to English and Welsh leaseholders. Essentially, it describes the conduct that courts will expect the various parties to follow in a housing disrepair claim before legal proceedings begin. The aim here is to encourage the early exchange of information between parties and to hopefully allow them to achieve a quick resolution.
Before the Protocol can begin, the landlord must be notified about the disrepair and given a reasonable time to deal with it, in addition to potentially having to go through the section 20 consultation procedures if he is attempting to recover repair costs via service charges and it will cost any one leaseholder more than £250.
The courts also expect legal action to be a last resort, so they would expect to see that that both parties have considered whether mediation, arbitration or early neutral evaluation may more effective methods of dealing with the dispute.
If the landlord has failed to deal with disrepair and alternative dispute resolution has been explored, the leaseholder can then proceed to the Protocol. A leaseholder can start the protocol themselves or employ a solicitor.
The Protocol steps are as follows:
Early Notification Letter/Letter of Claim
The Early Notification Letter acts as a notification to the landlord of the claim when the claim’s full details haven’t yet been established. If they have been established, this stage can be skipped and the process can go straight to the Letter of Claim stage.
The Letter of Claim should contain:
- the leaseholder’s name and details in addition to the address of the property
- details and histories of the issues
- details of any notifications previously issued to the landlord
- the effects of the defects on the leaseholder including any injury claim
- the name of a proposed expert relevant to the issue, and the proposed letter of instruction to them
- details of special damages to bring the leaseholder back to the financial situation they would have been in had no issues occurred
- the leaseholder’s disclosure of any relevant documents that are readily available
- request disclosure from the landlord of all documents relevant to the disrepair
The Landlord’s Response
The landlord should reply with twenty working days of receipt of the Early Notification Letter or Letter of Claim, whichever comes first. The reply should include relevant records or documents and a response to the proposals regarding the expert. If there is no response, legal proceedings can be issued as soon as the leaseholder has enough information to enable them to do so.
Appointing the Expert
All parties should attempt to agree upon the appointment of a single expert. If they cannot do so, a joint inspection by experts representing each party to take place after the twenty-day working period specified in the first letter should be agreed.
Admission or Denial of Liability
Within twenty working days of receiving the expert’s report, the landlord should:
- confirm whether liability is admitted or disputed
- bring up any points about lack of notice or difficulty with access
- send a full schedule of intended works
- make any offer of compensation and costs