What Is the Pre-Action Housing Disrepair Protocol?

If you receive a letter of claim under the Pre-Action Housing Disrepair Protocol from one of your tenants you need to take action within a certain timeframe, or you could be taken to court.

This article explains what the Pre-Action Housing Disrepair Protocol is and how you should approach the process.

What Is the Pre-Action Protocol?

The Pre-Action Housing Disrepair Protocol (or Pre-Action Protocol for Housing Disrepair)  is a type of court action used by tenants whose landlord has failed to address poor housing conditions when they are brought to their attention by tenants. 

Under the Disrepair Protocol, a court sets out a series of steps that both parties need to take in order to address habitability issues on a residential property.

The aim of the Pre-Action Protocol is to solve these issues without the claim being brought to litigation. However, if either side fails to engage in the process correctly or can’t reach an agreement then it still may proceed to a court case.

Requirements 

For a tenant to use the Pre-Action Protocol, the following must be true:

• The tenant has informed the landlord of the poor conditions or the need for repairs
• The poor conditions or need for repairs are the landlord’s responsibility under the tenancy agreement 
• The landlord knows about the poor conditions
• The landlord has had reasonable time to have the work done
• The matters causing the poor conditions remain unresolved
  
  

What to Do If You Are Issued with a Letter of Claim

Receiving a letter of claim from one of your tenants can be frustrating, especially if you feel that it’s unjustified. Here are some things to consider if it does happen.

Don’t React Emotionally

Stay calm and professional. Getting angry will likely only make the situation worse. Also, don’t panic! If you are confident that your tenant’s claim is incorrect, then the expert should recognise this and you’ll avoid an expensive court case.

Get a Solicitor

You may wish to get legal advice. You can navigate the Pre-Action Protocol procedures yourself, but having expert advice could make the process quicker, and easier and lead to a better outcome for you.

Engage in the Process and Be Constructive

The best way to ensure a good outcome is to fulfil all requirements as soon as possible and to the best of your abilities. 

What Is the Pre-Action Protocol Process?

The Disrepair Pre-Action Protocol sets out procedures and timetables that you have to follow. The timetables begin from the moment a claim is lodged. 

Alternative Dispute Resolution

You and your tenant may be asked to prove that an intermediary was used to reach an agreement before approaching the court. The court will consider the extent to which each party complies with an alternative dispute resolution when making a ruling. 

Mediation services include:

• The government’s free Rental Mediation Service 
• The Civil Mediation Council’s Fixed Fee Mediation Scheme

Letter of Housing Conditions Claims

The tenant must send the landlord a letter outlining the issue and warning them of court action. It should include information such as:

• The tenant's details.
• When the property is available for the landlord to perform repairs.
• A list of outstanding defects.
• The history of the defects and any attempts to rectify them.
• When the tenant informed the landlord of poor housing conditions.
• The impact of the defects on the tenant.
• Details of a proposed expert and a letter of instruction to them.
• Relevant documents disclosed by the tenant.
  
  

The landlord has 20 working days to respond, either by performing the required repairs, scheduling a date to perform them, or providing a satisfactory reason why they can’t or won’t perform the work.

The tenant should also try to send the landlord an early notification letter that informs them that they intend to take court action.

The Tenant Sends Claim Documents

The tenant should also request that the landlord sends relevant documents including:

• A copy of the tenancy contract.
• The tenancy file.
• Any documents relating to notice of poor housing conditions.
• Inspection reports or documents relating to work required. 

The Landlord Responds

The landlord’s response should include:

• Copies of records or documents requested by the tenant
• A response to the tenant's proposals for instructing an expert to inspect, including whether they agree with the proposal.
• If they disagree with the expert or the instructions, they should suggest alternatives.
• Which issues they admit liability for and which ones they dispute.
• Any points that they want to make regarding lack of notice or difficulty gaining access.
• A schedule of work to remediate the poor conditions, including start and finish dates.
• Any offer of compensation.

If the landlord fails to respond to the letter of claim within 20 days then the tenant is free to escalate the matter to regular court proceedings.

Expert Opinion

The expert’s job is to report on any adverse conditions they find. 

They provide a recommended schedule of work along with estimated costs, and highlight any urgent actions that are required.

Not every case will need an expert opinion⁠, for example, if the issue only relates to disagreements over claiming damages.

When instructing experts, both landlords and tenants should follow guidance from the Civil Justice Council.

Inspection Takes Place

Tenants must allow the landlord reasonable access to the property so that the inspection can take place. The landlord should also give reasonable notice of the need for access.

The property should be inspected within 20 working days of the landlord responding to the tenant’s letter of claim.

Following the inspection, the expert’s report should be sent to both landlord and tenant within 10 working days. 

Take Stock

In most cases, the Protocol procedures are enough to resolve any issues. But if they aren’t, both parties must review their positions to try to reach an agreement again.  

Will the Protocol Cost Me Money?

There are several ways that the Protocol process could cost you money. They include:

The cost of a solicitor: If you decide to hire a solicitor you are unlikely to be reimbursed.

Repairs: If you accept liability and agree to make repairs, it will be at your own cost.

Expert fees: If an expert is hired you have to pay your half of the expert fees.

Tenant’s costs: If the tenant's claim is successfully settled without litigation, the landlord has to pay the tenant's reasonable costs. This includes legal costs, the expert’s fees and loss of earnings. 

Non-compliance: The court could apply financial penalties to any party that doesn’t comply with the Protocol or conducts themselves inappropriately.

Court proceedings: A subsequent court case could force you to pay additional expenses if it finds in the tenant’s favour and you didn’t accept to settle out of court via the Protocol process.

Personal injury claims protocol: Tenants can also use a special procedure under the Protocol to make a personal injury claim that was caused by the disrepair.

How to Avoid Tenants Using the Protocol

The best way to avoid your tenants using the Protocol or sending you an early notification letter is to be organised and efficient in all aspects of your property management. You should:

Keep Your Properties in Good Condition

It’s your responsibility to ensure that your properties are fit for human habitation. If you do this and have good tenants then you should have very little concern about the Protocol. 

Respond Quickly to Requests 

An issue that seems low priority for you could be a nightmare for your tenants. By making sure that repairs are performed as quickly as possible, you keep your tenants happy and give them less reason to use the Protocol. 

Communicate Well with Tenants

It should be quick and easy for your tenants to contact you to report problems. When they do it’s a good idea to respond quickly and let them know what action you will take and by when. Keep them updated on progress. 

Know Your Tenancy Agreement

One of the biggest reasons tenants use the Protocol is disagreements with the landlord over who is responsible for a repair. Tenants often get fed up dealing with problems they perceive as the landlord's responsibility.  

Make sure your tenancy contract is explicit and clear. This way, when a disagreement arises you can highlight the relevant section. 

Keep Records

By keeping clear records of what was reported, when, how you responded, the work done and any inspections, you can evidence the fact that you knew about an issue and addressed it.

Keep Your Property Maintenance on Track

Evo is a digital solution that helps you, your tenants and tradespeople communicate better and ensure that maintenance and repairs are reported and delivered. 

It helps ensure your tenants are happy and that issues are dealt with quickly and efficiently.

To learn more about maintaining your properties and meeting regulations, check out our articles on EICRs and Gas Safe Building Compliance Regulations Certificates.