Whilst there might be a decline in the number of new housing disrepair claims in the short term, there is likely to be a spike in claims once restrictions are lifted, write Matthew Lake and Matthew Wilson.
With the country currently in lockdown on the orders of the Government, people are staying at home wherever possible and the courts are adjourning all but the most serious of cases for the foreseeable future. This is having a major impact on society in every conceivable way, including the manner in which landlords are able to deal with housing disrepair claims.
Whilst there might be a decline in the number of new claims in the short term, there is likely to be a spike in claims once restrictions are lifted, and landlords still need to deal with those claims that have already been raised, whether they are pre-litigation or currently in the court process. There is no ‘one size fits all’ approach to dealing with those claims. Common sense and co-operation between the parties is going to be essential.
Complying with the Pre-Action Protocol for Housing Conditions Claims (England)
The main difficulty will be undertaking inspections and completion of works. The Protocol requires proposals for completing repairs to be made by a landlord within 20 working days of receipt of a letter of claim or a report of any expert, which may not now be possible because of a number of factors including the tenants’ reluctance to allow anyone into their homes, the unavailability of in-house surveyors due to illness or their employers’ policies on external work during this crisis, and the unavailability of independent experts to conduct inspections.
There are still some independent surveyors who are prepared to inspect and we are aware that landlords are identifying what they consider to be ‘critical’ works which will still be undertaken during this period of lockdown. Care will need to be taken when considering what to include on the list of critical works and landlords should also consider the personal circumstances of the tenants and other occupants when making their assessments.
Once works are agreed, it is understandable, in the ordinary course of things, for tenants to want to know when works will begin and when they are expected to be completed. However, the current situation is anything but ordinary. Landlords need to give careful consideration to what they can promise to do presently in terms of works, and when they can complete those works by. If the defects alleged by the tenant are ‘minor’ in all of the circumstances, it would be unreasonable, in our opinion, for tenants to be demanding repair works while a stay at home order is in place.
Management of risk
The manner in which works are to be undertaken, including measures needed to reduce risk to both the occupants of the property and the contractors on site, will also need to be carefully considered. It would be unreasonable, in our opinion, for tenants to impose an arbitrary deadline for completion of any agreed works as no-one knows what may happen from day to day and what further restrictions may be imposed that may impact on the ability to complete those works. Works cannot be undertaken in haste in order to appease a tenant where it will expose staff, contractors and tenants to unnecessary risk.
The main questions for landlords to consider in these matters presently are:
- In all of the circumstances of the individual case, are any of the alleged defects prejudicial to health and/or do they pose an immediate danger to the occupants of the property?
- What works can be completed to alleviate those risks?
- How can the risk of contagion be minimised whilst contractors are on site?
- Realistically, when can those works be completed by?
If a tenant should choose to issue proceedings or apply to enforce the terms of a concluded settlement which includes agreement to complete works by a specified date, owing to a delay in completion of works whilst a stay at home order is in place, we are of the opinion that this will expose those tenants to criticism from the court and potential penalties including costs orders.
Furthermore, it would appear unreasonable for tenants to seek to claim compensation for any period of delay in completing works caused directly as a result of the stay at home policy and the COVID-19 pandemic generally.