Can I withhold rent for disrepair in my property?

Many tenants feel that it is within their rights to withhold their rent when the landlord is failing to carry out repairs to their property. Naturally, the tenant will feel aggrieved that they have to continue paying the full amount of rent for a property that is in disrepair. In many cases this leads to tenants witholding their rent payments and accruing rent arrears.

However, we would almost always advise tenants that they should not withhold their rent payments, as this is a very high risk strategy that should only be taken with legal advice.

The Risks

Witholding rent is a bad idea for a number of reasons. A landlord can easily obtain a money judgement against a tenant who has breached their contract by failing to pay.

However, the main concern is that non-payment of rent can leave a tenant at risk of possession proceedings and ultimately losing their home. How this works in practice depends on the type of tenancy involved. If the landlord of an assured tenant can show that 8 weeks of rent is unpaid at the date of the notice and at the date of the hearing (i.e. the tenant has not made any effort to reduce the arrears after notice), they could rely on ‘Ground 8’ and obtain a mandatory possession order against the tenant. Court action can be taken just two weeks after a tenant is served with the notice.

A landlord of an assured shorthold tenant does not require reasons (known as grounds) to seek possession and unpaid rent could spur a landlord on to seek possession using the accelerated (non-fault) procedure. This could also include a money claim against the tenant who would be left in debt as well as without a home.

The Right to Repair

Tenants do have some rights under Common Law to carry out repairs themselves and deduct the cost of the repairs from their future rent payments. If the procedure is followed correctly, the tenant will have a complete defence to a possession claim on the basis of rent arrears arising from the deduction of repair costs from the rent. However, the procedure must be strictly complied with and the tenant must ensure that the landlord has had adequate notice and the opportunity to do the works themselves. It is preferable to notify the landlord in writing and keep the evidence of all communication with the landlord, so that compliance with the procedure can be proven.

1. You must inform the landlord of the repairs and allow them a reasonable time to conduct these. What is ‘reasonable’ will depend on the circumstances and will ultimately (if the landlord decides to take court action) be decided by the judge. You should keep a record of all information you send to your landlord.
2. If the landlord does not take any action you must then inform the landlord (preferably in writing) that you will be doing the repairs yourself unless the landlord complies with their obligation.
3. A further reasonable period should then be allowed for the landlord to carry out the works.
4. You should obtain three quotes for the works. The landlord should be invited to comment on the quotes and be afforded a final opportunity to carry out the repairs.
5. You should then choose the lowest estimate and send the landlord the invoice for reimbursement.
6. If no payment is received, only then may you deduct the cost of repairs from the rent.

It is important to note that the tenant will be liable for any works they have carried out to the property, including poor workmanship or damages caused by the works.

Dealing with Major Disrepair

Rather than running the risks of withholding rent, we would advise tenants to do the following:

1. Keep paying your rent (albeit through gritted teeth);
2. Keep reporting the disrepair to your landlord. If you do this in writing you have a paper trail of giving notice, so this is always advisable.
3. Allow your landlord access to inspect the property and carry out repairs.

It is advisable to ensure that you are behaving in a reasonable manner, even if the landlord is behaving unjustly. If the matter ends up in court a judge may look more favourably on a tenant who has carried on paying rent, reporting problems and allowing access despite disrepair. The more reasonable the tenant looks, the more unreasonable the landlord’s failure to carry out repairs will be.