Disrepair Protocol
Using the Disrepair Protocol - A landlord's perspective
The disrepair protocol came into force on 8 December 2003. The aim of the procedure is to:
- Avoid unnecessary litigation
- Promote speedy repairs by the landlord if appropriate
- Ensure the speedy payment of any compensation due
- Promote early disclosure of relevant information by both parties
- Minimise costs
Negotiation is encouraged at every stage and claims should not be issued whilst settlement is still likely.
What does it cover?
The protocol sets out the procedure for landlords and tenants to follow in claims arising out of the condition of the tenant's premises. It includes claims which include a claim for minor personal injury.
It DOES NOT cover counter claims made by tenants to other proceedings (e.g. possession proceedings).
What does the tenant do?
The tenant may either send an early notification letter or a letter of claim to the landlord. This will depend on whether the tenant's adviser has all the relevant information or not.
An early notification letter will set out the details of defects and when notice was given to the landlord, proposals for a joint expert, include any early disclosure by the tenant and make a request for disclosure of relevant records.
In addition to the above information a letter of claim will include the history of the defects, the effect of the defects on the tenant and occupiers and details of any special damages (monetary losses).
The landlord's response
The landlord should reply within 20 working days to the early notification letter providing a copy of the tenancy agreement, records showing when defects were reported and attended to and respond to the question of the expert.
Similarly the landlord has 20 working days to respond to the letter of claim. The response must cover:
- Whether liability is admitted or not
- Reasons why liability is contested
- Details of defences i.e. no notice given/access refused
- A schedule for proposed works
- Offer of compensation
- Costs
The expert
The Protocol envisages a single joint expert to save on costs and time. The expert is expected to report on all items of disrepair which the landlord ought reasonably to know about or ought reasonably to report on and should produce a schedule of works, an estimate of the costs of repair and list any urgent works. In some cases an expert may not be needed and evidence can be presented by way of photos or video evidence.
The parties may also each send their own experts for a joint inspection. The court will ultimately decide whether each party has acted reasonably.
The property should be inspected within 20 days of the date that the landlord responds to the tenant's first letter.
If a joint expert is used the costs will be split 50:50 otherwise each party will bear the costs of their expert.
A report should be produced within 10 days of the inspection setting out:
- the defects and required works which are agreed and a timetable for their completion
- areas of disagreement and the reasons for disagreement.
Costs
If the tenant's claim is settled without litigation on terms which justify bringing it, the landlord will pay the tenant's reasonable costs.
Comment
Obviously these are tight deadlines and landlords need to have efficient procedures in place to meet them. The protocol suggests that where the landlord is an organisation it should nominate a person to act as a point of contact for the tenant. Landlords who fail to meet a deadline may ultimately be expected to explain this to the court and may be penalised by way of an adverse costs order. Landlords are advised to carry out repairs as soon as practicable to avoid liability continuing unnecessarily. The protocol envisages that in most cases a single joint expert is used. Where a landlord wants its own surveyor to attend instead it should be satisfied that this person is qualified and understands his obligation to the court. The defined ambit of what the expert is to report on includes items which the landlord ought reasonably to have known about but it is difficult to see that damages would be awarded for such items if the landlord had received no prior notice of their existence. A landlord will have to provide reasons why it objects to the tenant's expert and the court will ultimately determine whether it acted reasonably and whether costs are recoverable for a further expert or not. Landlords will also have to bear the reasonable costs of a claim where the tenant is justified in bringing a claim and this means that in most cases it makes sense for a landlord to settle as early as possible, particularly where the tenant is legally aided and there is no hope of any future costs recovery.
On a positive note it is hoped that because information is disclosed early and the deadlines for compliance are fairly tight that cases can be settled quickly with minimum delay which has to be in the interests of both parties.
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