A tenant’s rent arrears do not automatically prevent them from bringing a Housing Disrepair claim.
The landlord’s repairing obligations and the tenant’s obligation to pay rent are separate contractual duties. However, arrears can materially affect the procedural route, possession proceedings, settlement negotiations, the treatment of damages and the eventual costs position.
For claimant solicitors, these cases require careful coordination between the Housing Disrepair claim and any rent or possession issues.
Key points
- Rent arrears do not, by themselves, extinguish the landlord’s repairing obligations.
- A tenant may raise Housing Disrepair as a counterclaim or set-off in possession proceedings.
- Compensation may be set against arrears.
- A damages award does not automatically prevent possession.
- The ordinary Housing Conditions Protocol does not apply in exactly the same way where disrepair originates as a counterclaim or set-off.
- Possession pleadings, rent statements and existing court orders must be reviewed immediately.
- Settlement wording should address both damages and arrears clearly.
- The costs position may differ substantially from a standalone pre-action disrepair claim.
Can a tenant claim where rent is owed?
Potentially, yes.
The existence of rent arrears does not automatically excuse a landlord’s failure to comply with its repairing obligations. A landlord may still be responsible for matters such as:
- structural disrepair;
- leaking roofs;
- water ingress;
- defective heating;
- unsafe electrical installations;
- damaged plaster;
- defective windows and doors;
- sanitation problems;
- and serious damp and mould.
The tenant’s conduct may still be relevant to individual issues. For example, the landlord may raise:
- lack of notice;
- failure to provide access;
- tenant-caused damage;
- or failure to use installations properly.
Those are evidential matters. They should not be confused with the mere existence of arrears.
Standalone claim or counterclaim?
The procedural route depends on the stage reached.
Standalone Housing Disrepair claim
The tenant may instruct solicitors and pursue a claim before any possession proceedings have begun. The Housing Conditions Protocol will usually govern the pre-action process for an English property. The claim may seek:
- completion of repairs;
- compensation;
- special damages;
- personal-injury damages where appropriate;
- and legal costs.
Counterclaim in possession proceedings
Where the landlord has already issued possession proceedings based on rent arrears, the tenant may raise Housing Disrepair within the defence and counterclaim. The tenant may argue that compensation due for the landlord’s breaches should be taken into account against the arrears.
The Housing Conditions Protocol expressly recognises that claims originating as counterclaims or set-offs in other proceedings fall outside its ordinary scope. However, the parties are still expected to:
- exchange relevant information;
- act reasonably;
- identify the issues;
- and attempt early settlement.
What is a set-off?
A set-off allows one monetary claim to be taken into account against another.
In a rent-arrears possession claim, the landlord may say the tenant owes £8,000 in rent. The tenant may say the landlord is liable to pay damages for years of disrepair.
If the tenant establishes a damages claim, the court may need to consider the net balance between the proven arrears and the damages awarded. The position is fact-sensitive and may depend on:
- the type of tenancy;
- the possession ground relied upon;
- the amount of arrears;
- the value of the counterclaim;
- existing orders;
- and the procedural history.
Can disrepair damages clear the arrears?
They may reduce or extinguish the arrears, depending on the figures. For example:
| Illustration | Amount |
|---|---|
| Rent arrears | £6,000 |
| Agreed disrepair damages | £4,500 |
| Potential net arrears | £1,500 |
This is only a simplified illustration. The actual treatment may also involve:
- interest;
- costs;
- payments made since issue;
- Housing Benefit or Universal Credit adjustments;
- previous orders;
- and settlement terms.
Practitioners should not assume that the damages will automatically be paid directly to the tenant.
Can the landlord still obtain possession?
Possibly. A Housing Disrepair counterclaim does not automatically defeat a possession claim. The effect may depend upon:
- the ground for possession;
- whether the ground is mandatory or discretionary;
- the amount of arrears at the relevant hearing date;
- the value of any counterclaim;
- and the court’s findings.
Early advice is particularly important where:
- a hearing is imminent;
- a possession order already exists;
- a suspended possession order has been breached;
- or an eviction date has been fixed.
The Housing Disrepair team must coordinate with the housing or possession practitioner handling the proceedings.
What documents should be obtained immediately?
Possession papers
Obtain the claim form, particulars of claim, defence, any counterclaim, rent statement, notice seeking possession, court orders, hearing notices and any warrant or eviction notice.
Tenancy documents
Review the tenancy agreement, variations, succession documents, assignment documents and relevant tenancy conditions.
Rent statement
The rent statement should be checked carefully for:
- unexplained charges;
- Housing Benefit adjustments;
- Universal Credit payments;
- direct payments;
- suspended-order payments;
- and payments credited to the wrong period.
The Housing Disrepair solicitor should not independently accept the landlord’s arrears figure without checking the evidence.
Disrepair evidence
Obtain photographs, videos, repair reports, reference numbers, complaint correspondence, inspection records, expert reports and medical evidence where relevant.
Access evidence
Access allegations frequently arise in these cases. Preserve appointment letters, text messages, call records, evidence of cancelled visits, contractor notes and the tenant’s explanation of any missed appointment.
Does the Housing Conditions Protocol apply?
For a standalone Housing Disrepair claim in England, the Protocol should ordinarily be followed. Its objectives include:
- avoiding unnecessary litigation;
- securing prompt repairs;
- encouraging early exchange of information;
- supporting appropriate expert evidence;
- and keeping costs proportionate.
However, the Protocol states that it does not cover claims that originate as counterclaims or set-offs within other proceedings, commonly a possession claim for rent arrears. This does not mean the parties can ignore pre-action conduct entirely. The landlord and tenant should still act reasonably in exchanging documents, arranging inspections, considering works, valuing the claim and exploring settlement.
Are rent records relevant to a standalone claim?
The Protocol indicates that rent-arrears documents will not normally be relevant to an ordinary standalone Housing Disrepair claim. That reflects the fact that the landlord’s repairing duties are not usually conditional upon the tenant having a perfect rent account. The position changes where:
- rent arrears are pleaded;
- possession proceedings exist;
- a set-off is sought;
- settlement includes the rent account;
- or the arrears affect the practical remedy.
Practitioners should request only what is genuinely relevant to the issues.
Settlement considerations
A settlement involving both disrepair and rent arrears must be drafted carefully. The agreement should address:
- the gross amount of damages;
- the amount credited against arrears;
- any balance paid to the tenant;
- repairs and completion dates;
- access arrangements;
- rent-account adjustments;
- the status of possession proceedings;
- any existing possession order;
- enforcement;
- interest;
- and legal costs.
Avoid vague wording such as “Damages of £7,000 inclusive.” That may create uncertainty about whether the sum includes rent arrears, interest, costs, repairs or all claims between the parties.
What happens to legal costs?
The costs position depends heavily on the procedural route.
Standalone pre-action settlement
The Housing Conditions Protocol states that where a tenant’s claim settles without litigation on terms that justify bringing the claim, the landlord should pay the tenant’s reasonable costs. The precise entitlement will depend on the settlement wording. Where liability for costs is agreed but the amount is not, the claim may proceed by way of Part 8 costs-only proceedings.
Issued standalone claim
Costs will depend upon the order, the track, the costs regime, offers, conduct and the outcome.
Defence and counterclaim in possession proceedings
The costs position may be more complicated because the court is dealing with:
- the landlord’s possession claim;
- the tenant’s defence;
- the disrepair counterclaim;
- and potentially mixed success.
There may be separate questions concerning claim costs, counterclaim costs, legal-aid costs, fixed costs, standard-basis costs and set-off. The final order must be read carefully before a bill is prepared.
Costs-drafting issues
When preparing a bill involving rent arrears and disrepair, the costs draftsman should identify:
- when the possession proceedings began;
- whether the disrepair claim preceded them;
- which work related to the claim;
- which work related to the counterclaim;
- which work related solely to possession;
- whether there was common work;
- the funding arrangements;
- the orders made;
- and the settlement structure.
Poor allocation can create substantial vulnerability during assessment. Entries should explain why the work was reasonably required. Examples include:
- reviewing the possession claim to assess the procedural effect on the disrepair claim;
- analysing the rent statement for the purpose of the pleaded set-off;
- drafting the Housing Disrepair counterclaim;
- coordinating expert evidence with the possession timetable;
- and advising on settlement terms addressing damages and arrears.
Common mistakes
- Rejecting the client solely because arrears exist. Arrears are a risk factor, not an automatic bar to a claim.
- Failing to obtain the possession papers. The Housing Disrepair case cannot be assessed properly without understanding the live proceedings.
- Treating the rent statement as accurate without review. The statement may contain errors or missing credits.
- Running separate cases without coordination. The possession and disrepair teams must communicate.
- Settling damages without addressing the arrears. This can leave both sides uncertain about the remaining balance.
- Assuming costs automatically follow the counterclaim. The order and procedural history must be analysed.
How DMD Costs can help
DMD Costs regularly prepares and negotiates claimant Housing Disrepair costs, including matters involving:
- rent arrears;
- possession proceedings;
- disrepair counterclaims;
- damages set-off;
- complex settlement wording;
- Bills of Costs;
- Points of Dispute and Replies;
- and Part 8 costs-only proceedings.
We analyse the order, settlement and procedural history carefully so that the bill reflects the work properly attributable to the recoverable claim. Send us your costs file and we will review the position.