Understanding Compensation in Housing Disrepair Claims
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Adele Pinkett
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How is compensation in disrepair claims calculated?
“Far from an exact science” is a phrase often heard when discussing damages for disrepair, however we set out below some of the main principles.
The courts will consider general damages and special damages. General damages are awarded for loss of amenity including inconvenience, disappointment, and distress. Special damages concern financial economic losses.
Separate awards can be claimed for personal injury and, since the Cout of Appeal decision in Simmons v Castle (2012), general damages will attract a 10% uplift.
Tenants
The most common method for calculating damages is to use a percentage reduction from the rental value.
In these cases, it will be necessary to determine how long the disrepair has been ongoing (the landlord should be afforded a reasonable period to undertake the repairs), the amount of rent paid during this period (not including service charges) and then assessing the severity of the disrepair. It does not matter if the rent was not paid by the tenant, for example, if they were in receipt of benefits.
To decide the percentage, the court may consider awards made in similar cases. Most cases are heard in the county court and are not binding, however they can be persuasive. There remains limited binding case law for claims concerning fitness for human habitation under the Home (Fitness for Human Habitation) Act 2018, however tenants have received up to 100% of their rent.
In some cases, the courts make a global award. This should be cross-checked against the rent payable for the period of the disrepair. Occasionally, the court will use a combination of both methods. These cases generally concern complex or uncertain facts.
Damages can still be claimed if you are not in occupation, however awards are likely to be significantly lower. It is also worth bearing in mind that claimants have a duty to mitigate their losses and deductions for contributory negligence are often argued by landlords.
Leaseholders
The starting point is a percentage reduction in the hypothetical open market rent that could be obtained for a private tenancy of the property. Evidence will normally be provided of comparable properties listed on letting websites. Again, it will be necessary to consider the duration of the disrepair and its severity.
The court also have the option of making a global award or using a combination of the assessment methods. This approach is less common.
Shared Ownership
These cases are more complicated. A shared ownership lease granted by a housing association or private body is considered an assured or assured shorthold tenancy.
There is no binding case law on how damages should be assessed in these cases, and most cases settle before a final hearing. The general principle applies that the tenant should be placed in the situation they would have been but for the breach. Hopefully the court will provide greater clarity soon.
Limitation
It is always important to bear in mind the limitation period. The limitation period for disrepair claims is generally 6 years from the date of the breach of the obligation to repair. Claims for a breach of contract made by deed must be brought within 12 years. The limitation period to bring a claim for personal injury is 3 years from the date of the incident or knowledge.
Limitation is a defence which must be pleaded. This means that a claim for disrepair is not automatically capped, however a landlord with legal representation will almost certainly raise this in their defence.
How can we help?
If you’re dealing with housing disrepair or unsure about your legal rights, Osbornes Law is here to help. Our experienced team specialises in landlord and tenant disputes, including complex disrepair claims. Contact us by:
- Filling in our online enquiry form; or
- Calling us on 020 7485 8811
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