Disrepair during COVID-19

Caught between a rock and a hard place over access during lockdown?

With the country currently in lockdown on the orders of the Government and social distancing being observed, many landlords are unsure whether they can access properties to inspect or carry out repairs.

When can you enter a property? There is no ‘one size fits all’ approach to dealing with repairs during this period and common sense and co-operation are essential. You, of course, should have your own policies and procedures in place now but the Government has released helpful guidance as to when you should be able to enter a property during lockdown. 

Read Coronavirus (COVID-19) Guidance for Landlords and Tenants

It suggests tenants should allow the landlord access to remedy ‘urgent health and safety issues’ and to ensure a tenant can ‘live safely and maintain their mental and physical health in the property’, which include:

• If there is a problem with the fabric of the building
• If the boiler is broken and the tenant does not have heating/ hot/ cold water
• If there is a plumbing issue
• If there is a white goods problem
• If there is a security problem
• If the equipment a disabled person replies on requires installation or repair

What about gas, fire and electrical safety inspections? You should make every effort to abide by the existing safety regulations. If you cannot gain access to a property or get a contractor to attend to carry out necessary inspections or work, ensure you document all attempts and correspond with the tenant. Read further guidance from Gas Safe Register

Don’t carry out works in haste in order to appease a tenant where it will expose staff, contractors or tenants to unnecessary risk. Remember social distancing does need to be observed for all emergency repairs, regardless, and your own policies and procedures should now reflect this.

What about EPA claims?

Environmental Protection Act Claims or “EPA” Claims should be dealt with similar to disrepair claims in that access to remedy ‘urgent health and safety issues’ and to ensure a tenant can ‘live safely and maintain their mental and physical health in the property’ should be provided in accordance with Government guidance and, of course, your policies and procedures.

Most EPA cases we have dealt with have been adjourned to a later date, but your obligations still apply. You do need to attempt to abate the alleged nuisance within 21 days of notice of the EPA. If this cannot be done due to tenants isolating, or you do not consider the alleged nuisance to be a ‘health and safety’ matter as described in the guidance, you should document the reasons why, refer to the guidance, your policies and procedures and record all attempts and correspond with the tenant.

You won’t receive any sympathy from the courts if you don’t comply with the rules. 

Desktop surveys — don’t do it

With only emergency repairs being carried out, it might feel like some of your pre-action repair cases are on the road to nowhere. And yes, most will certainly be sitting in the lay-by until lockdown is loosened. 

Some claimants are trying to push new pre-action cases forwards by suggesting a desktop survey be carried out. This is where a tenant takes a few photographs on his phone of the alleged disrepair and provides them to a surveyor who makes an assessment of the disrepair on paper.

I repeat, a survey where the surveyor doesn’t attend the property, doesn’t take any readings but provides a report anyway. 

Don’t agree to it.

No court will criticise you for refusing a desktop survey and it would appear unreasonable for tenants to seek to claim compensation for any period of delay in physically inspecting a property and completing works caused directly as a result of the stay at home policy.

We are aware that there is a handful of surveyors who have continued to carry out inspections and provide reports during lockdown and some who have booked in inspections for May. If instructing one of these experts please ensure that they have policies in place with regard to social distancing, in accordance with the most recent Government announcement.

Current proceedings

Practice Direction 51Z provides that any proceedings brought under CPR Part 55 (including proceedings seeking to enforce an order for possession) are stayed for a period of 90 days.

The stay does not apply to:

1. Claims against trespasser to which CPR 55.6 applies;
2. An application for interim possession under Section III of Part 55;
3. An application for case management directions which are agreed by all parties.

Paragraph 3 of Practice Direction 51Z also expressly states that claims for injunctive relief are not subject to the stay.

Given the above, disrepair counterclaims, where the initial proceedings were brought under CPR Part 55, will not fall within the stay if the tenant is seeking works be undertaken.

In those cases, (along with standalone disrepair claims), the claims are to proceed as normal, albeit any hearings may be listed by telephone or video.

If you are at the preliminary stages of a counterclaim, seeking to investigate the tenant’s allegations of disrepair, it will no doubt be proving difficult to inspect or to instruct an independent expert to do so.

Where difficulty is faced it would be prudent to attempt to agree a lengthy stay with the tenant, enabling sufficient time for the allegations to be investigated following the lifting of the Government’s COVID-19 restrictions. The parties can then, during the stay period, either seek to settle the counterclaim (if appropriate) or agree directions taking the matter to trial.

It is important to take stock of any disrepair counterclaims and ensure that you can comply with the directions moving forward.

Vulnerable tenants

Careful consideration needs to be given on how to approach a case that involves a tenant who is vulnerable.

As outlined above, there is no ‘one size fits all’ approach in the current circumstances. However, the tenant’s vulnerability needs to be at the forefront of your mind.

In particular, consideration needs to be given to the tenant’s property and whether it would be possible to inspect and carry out works whilst maintaining social distancing measures.

If you would like to discuss these issues in more detail, please do not hesitate to contact:

Sian Evans
Partner
DDI: 0151 242 6821
sian.evans@weightmans.com

Daniel Conroy
Solicitor
DDI: 020 7822 1939
daniel.conroy@weightmans.com

Kerry Whittaker
Associate
DDI:  0151 243 3318
kerri.whittaker@weightmans.com

Matthew Lake
Principal Associate
DDI: 0121 200 8124
matthew.lake@weightmans.com

Karen Neald
Associate
DDI: 0151 242 7928
karen.neald@weightmans.com