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New pre-action protocols bring clarity for disrepair and possession claims

The New Year has seen two new pre-action protocols come into force.

The Pre-Action Protocol for Housing Condition Cases (England) replaces the Pre-Action Protocol for Housing Disrepair. The Disrepair Protocol now ceases to apply in England (although it remains in force in Wales). The new protocol reflects the limited changes introduced by the Homes (Fitness for Human Habitation) Act 2018. This act also does not apply to Wales.

Useful updates have also been made to the Pre Action Protocol for Possession Claims for Social Landlords to include accelerated claims for possession.

Why have changes been made?

Changes to the protocols were required to ensure that they remain consistent with the new Section 9A of the Landlord and Tenant Act 1985 (LTA), as now amended by the Homes (Fitness for Human Habitation Act 2018), which came into force on 20 March 2019.

Section 9A(1) LTA implies into a tenancy agreement a covenant by a landlord that the dwelling:

(a) is fit for human habitation at the time the lease is granted or otherwise created or, if later, at the beginning of the term of the lease, and
(b) will remain fit for human habitation during the term of the lease.

Section 9A LTA intends to strengthen the position of tenants in circumstances where their landlord fails to fulfil their legal obligations to keep their properties safe. A tenant has the right to pursue a claim for breach of contract where a property is considered unfit for human habitation.

Section 10 LTA (as amended) lists ten issues to consider when assessing whether a property is fit for habitation. These are:

  1. Repair;
  2. Stability;
  3. Freedom from damp;
  4. Internal arrangement;
  5. Natural lighting;
  6. Ventilation;
  7. Water supply;
  8. Drainage and sanitary conveniences;
  9. Facilities for preparation and cooking of food and for the disposal of waste water; and
  10. In relation to a dwelling in England only, any prescribed hazard.

The available remedies for tenants are an order requiring the landlord to remove or reduce a hazard, and/or to pay compensation. This compensation is assessed by considering loss of amenity, which is no different from the remedies available under the old protocol.

How do the new protocols differ from the previous protocols?

The new Pre-Action Protocol for Housing Condition Cases (England) replaces the phrase ‘housing disrepair’ with ‘housing conditions’ throughout. Furthermore ‘repairs’ are now referred to as ‘works’. Aside from these substitutions, there are no real notable changes.

The changes to the Pre-Action Protocol for Possession Claims by Social Landlords are also fairly minor;

  • 1.1 now states "Part 3 applies to claims brought by social landlords where the court must, in principle, grant possession and where s89(1) Housing Act 1980 applies. The protocol does not apply to claims in respect of long leases."
  • 1.3 confirms that Part 3 of the Protocol now “seeks to ensure that, in cases where human rights, public law or equality law matters are or may be raised, the necessary information is before the Court at the first hearing".
  • 2.12 now states that, not less than 10 days before the hearing, the landlord should “disclose what knowledge it possesses of the tenant's housing benefit or universal credit (housing element) position to the tenant.”
  • 3.1 makes it clear that Part 3 does apply to mandatory grounds and ‘no security of tenure’ matters, as it states "This part applies in cases where if a social landlord proves its case, there is a restriction on the Court’s discretion on making an order for possession and/or to which s. 89 Housing Act 1980 applies (e.g. non-secure tenancies, unlawful occupiers, succession claims, and severing of joint tenancies)."

What do the changes mean for landlords and tenants?

The changes to both Protocols are likely to have only minimal day to day impact on the handling of housing claims.

However, landlords must ensure that their properties remain fit for human habitation at all times, or they risk action being brought by tenant’s pursuant to the Pre-Action Protocol for Housing Condition Cases (England). Furthermore, the new wording should be adopted to ensure Letters of Claim and expert reports are compliant with the Protocol. Ultimately, the crucial issue for consideration by either party when dealing with a matter concerning housing conditions is whether the property is unfit for human habitation as a result of the issues alleged to be present.

The changes to the Pre-Action Protocol for Possession Claims by Social Landlords should be welcomed, as they do resolve some previous inconsistencies and the new Protocol is generally clearer than the former.

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