Housing Conditions Cases: the cost of not following protocol
Some claims require parties to adhere to a set of rules, known as a pre-action protocol, prior to issuing and defending a claim. Housing conditions claims is one such type of claim that does have a pre-action protocol. The Protocol lays out the steps that must be taken, by whom and by when, before court proceedings are issued. Non-compliance could result in serious costs consequences following proceedings. The party in default could be ordered to pay extra costs or could see an award in their favour reduced. The court also reserves the right to impose other sanctions.
Both tenants and landlords should be mindful of the Protocol from an early on. It aims to promote early settlement, avoid the last resort of litigation and keep parties’ costs to a minimum.
Simple errors such as sending the wrong format or letter or replying out of time could see either party penalised, seemingly disproportionately.
Housing Conditions Claims
Landlords letting a dwelling wholly or mainly for human habitation must ensure that the property is fit for human habitation at the start of the lease and remains so throughout the term of the lease. In order to enable landlords’ compliance, tenants need to allow access to the landlords, or their representative, to inspect the property.
In determining whether a dwelling is fit for human habitation, regard is to be had to a number of factors, including dampness, water supply, natural lighting and ventilation, amongst other things.
Landlords will not be liable where a dwelling is unfit for human habitation due to the tenant’s own breach of the lease or due to a modification of the landlord’s repairing obligations by the court. Moreover, landlords will not be required to act in various scenarios such as when works would require the consent of a superior landlord which cannot be gained despite reasonable efforts.
In the event that a dwelling is not fit for human habitation, and the landlord fails take action when required, a tenant may apply to court for an order compelling the landlord to act or for damages.
Prior to making a claim, it is crucial for the tenant to comply with protocol. In defending a claim, it is equally important for the landlord to adhere to the protocol.
The Protocol at a glance
Alternative Dispute Resolution (ADR)
ADR should be considered by the parties. If the dispute proceeds to trial, the parties may be required to provide evidence that ADR was at least contemplated. There are various forms of ADR, each with their own merits which could make them appropriate for a particular dispute.
If the landlord has had opportunity to remedy defects with the property, and failed to take action, the tenant should send a letter of claim as soon as reasonably possible. The Protocol provides a specimen letter and details what should be included. The aim of the letter is to provide notice of the claim to the landlord at the earliest possible opportunity.
If a landlord is not an individual, a person of contact should be assigned to deal with the tenant’s claim and their details should be provided as soon as possible to the tenant. The landlord will need to reply to the latter of claim within 20 days. There are many factors to take into account when considering time frames and when calculating dates for receiving letters.
The landlord’s response will need to include any documents requested by the tenant and a response to the tenant’s likely proposal to appoint an expert, in particular whether a single joint expert is agreed, or whether a joint inspection by separately appointed experts can be agreed.
The response will also need to cover issues such as whether liability is admitted or disputed and any offers of compensation or payment of costs, amongst other things.
The instruction of experts is governed by its own Practice Direction, the Protocol in question provides additional, specific rules for the appointment of experts in housing conditions claims. Experts could be instructed by each party or jointly appointed, with the Protocol preferring a single joint expert in order to keep costs down.
In any event, the property should be inspected within 20 working days of the landlord’s reply. The timeframes applicable thereafter depend on how the expert/s was/were appointed, with the aim of the Protocol being open exchange of information to promote early settlement.
The expert’s fees and by whom they are paid should also be borne in mind also.
The Protocol does recognise that in urgent cases, a tenant may be allowed to instruct an expert alone at an earlier stage. However, this will only be allowed in certain circumstances such as where there are health and safety concerns. Thus, the tenant should tread carefully.
If the claim is settled without litigation on terms which justify a claim having been brought, presumably with some sort of repair or improvement, or damages payment to the tenant, it is the landlord that is required to pay the tenant’s reasonable costs.
This is only an overview of the protocol. You should understand the detail of the protocol or seek expert advice at an early stage. In all cases, you need to take the protocol seriously to avoid costs, consider the possibility of resolving the dispute without court proceedings and observed the time limits of the Protocol strictly.
Written by Oliver Clark – Trainee Solicitor.
If you have any questions relating to anything mentioned in the above article, please contact a member of our Litigation Team.