Housing Disrepair Claim UK 2026 — Pre-Action Protocol, Tenant Legal Aid, QOCS, and Landlord Defences

The scope of the implied repairing covenant — LTA 1985 s.11

The s.11 implied covenant covers a defined (and limited) list of landlord obligations:

• Structure and exterior: The landlord must keep in repair the structure and exterior of the dwelling — including the roof, walls, foundations, windows, external doors, gutters, and drains. 'Structure' means the load-bearing elements that define the building — not purely cosmetic elements such as internal plaster (unless the cracking results from a structural defect). 'Exterior' includes the external face of external walls but not internal surfaces
• Installations for water, gas, electricity, and sanitation: The landlord must keep in repair and proper working order the installations for the supply of water, gas, and electricity; the sanitary appliances including WCs, basins, baths, and sinks; and any directly connected plumbing. 'Proper working order' means the installation actually works — not merely that it is mechanically sound
• Space heating and water heating: The landlord must keep in repair and proper working order the installations for space heating and water heating. This includes boilers, radiators, and hot water cylinders — a broken boiler that leaves a tenant without heating is a classic s.11 breach. The landlord's obligation arises only in respect of installations provided by the landlord — a tenant-installed boiler is the tenant's responsibility
• What is NOT covered by s.11: The covenant does not require the landlord to: rebuild or reinstate after accidental damage (unless the damage was caused by the landlord's failure to maintain); repair anything the tenant is liable for (the tenant has an implied duty of 'tenant-like use' — not to damage the property deliberately or negligently); carry out improvements (s.11 is a repair obligation, not an improvement obligation — a landlord asked to upgrade single-glazed windows has no s.11 obligation unless the windows are in disrepair); or repair damage caused by the tenant's own failure
• Fitness for human habitation — Homes Act 2018: From 20 March 2020, s.9A LTA 1985 (inserted by the Homes (Fitness for Human Habitation) Act 2018) implies a further covenant that the dwelling is fit for human habitation at the beginning of the tenancy and remains fit throughout. The 29 HHSRS hazard categories are relevant to fitness. A tenant can bring a civil claim for breach of s.9A independently of any local authority enforcement action

The pre-action protocol for housing conditions

Before issuing a claim in the county court, parties must comply with the Pre-Action Protocol for Housing Conditions Claims (England). The protocol applies to all housing conditions claims against social landlords and private landlords alike:

• Step 1 — preliminary notice: The tenant should give the landlord written notice of the disrepair (specifying the defects) and allow a reasonable time to inspect and carry out repairs. The protocol recommends a letter of claim setting out the landlord's identity, the property address, the nature and extent of the disrepair, the date the landlord was first notified, the nature of the loss or damage suffered, and the remedies sought (repair and/or damages). The landlord should be given at least 20 days to respond
• Step 2 — landlord's response: Within 20 working days of receiving the letter of claim, the landlord should respond with: whether liability is accepted or disputed; if disputed, the grounds; whether the landlord intends to carry out an inspection; and what repairs are proposed and when they will be completed. A landlord who fails to respond within 20 working days may face costs sanctions if proceedings are later issued
• Step 3 — inspection and expert evidence: The protocol encourages both parties to jointly instruct a single joint expert (SJE) — typically a chartered surveyor or environmental health officer — to inspect the property and report on the defects. The SJE's report identifies the defects, their cause, the works required to remedy them, and their urgency. Both parties can put questions to the SJE. A landlord who refuses to allow an inspection or SJE appointment risks adverse findings
• Step 4 — schedule of works: Where the landlord accepts the claim, the parties should agree a schedule of works, timescale, and mechanism for monitoring completion. Where agreement is not reached, the tenant may issue proceedings. The protocol does not prevent urgent proceedings where health and safety is at immediate risk
• Costs consequences of non-compliance: Where a party has failed to comply with the protocol, the court may take that failure into account when making costs orders — including ordering the non-compliant party to pay costs on an indemnity basis or disallowing costs. A landlord who fails to respond to the letter of claim and then completes the repairs during proceedings may still face a costs order if the repairs could have been completed before issue

Legal aid, QOCS, and conditional fee agreements — the litigation economics

The economics of housing disrepair litigation heavily favour tenants — which is why claims have increased sharply:

• Legal aid availability: Housing disrepair claims are within scope for legal aid under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO 2012) Schedule 1 Part 1 — specifically, civil legal aid is available for claims that include a claim for an injunction. This means tenants with low income and capital can access publicly funded solicitors to bring disrepair claims, particularly where the claim includes a mandatory injunction for urgent repairs. Legal aid is means and merits tested
• Qualified one-way costs shifting (QOCS): Under CPR r.44.13-44.17, QOCS applies to all personal injury claims and extends to housing disrepair claims where the claim includes a personal injury element (which many do — asthma, fungal infections, and respiratory conditions caused by damp are commonly pleaded). Under QOCS, if the tenant loses, they ordinarily cannot be ordered to pay the landlord's costs — the landlord bears its own legal costs. This removes the financial deterrent that historically discouraged tenants from litigating
• Conditional fee agreements (no-win, no-fee): Solicitors specialising in housing disrepair typically act on conditional fee agreements (CFAs) — they receive no fee if the claim fails but charge an uplift (success fee of up to 100%) on their base costs if it succeeds. The Tenant Fees Act does not restrict CFAs. Solicitors can also recover a damages-based agreement (DBA) percentage of the award. The combination of QOCS protection and CFAs means many tenants face zero personal financial risk in bringing disrepair claims
• Interim payments: Where the landlord's liability is clear, a tenant can apply for an interim payment on account of damages (CPR r.25.7) without waiting for trial. Interim payments reduce the value of the dispute for settlement purposes
• Landlord's costs exposure: Where a disrepair claim succeeds, the landlord faces: the cost of carrying out the repairs (whether ordered by the court or done voluntarily); general damages for inconvenience and loss of amenity (typically £1,000-£5,000 per year of disrepair at current rates, more for serious cases); special damages for damaged belongings; personal injury damages where pleaded; and the tenant's legal costs (which in a CFA case include the success fee). A modest disrepair claim can generate total exposure of £20,000-£50,000 or more

Landlord defences — notice, reasonable time, and access

Three principal defences are available to landlords facing disrepair claims:

• Defence 1 — no notice: The landlord's s.11 obligation does not arise until the landlord has actual notice of the defect. A landlord cannot be in breach of the repairing covenant in respect of a defect of which they had no notice. The tenant must prove that the landlord (or the landlord's agent) was informed of the specific defect — a general complaint about 'the property' is insufficient. Note: where the defect is in a common area of an HMO or block of flats (under the landlord's control), the landlord is deemed to have constructive notice — no specific report from the tenant is required
• Defence 2 — reasonable time to carry out repairs: Once notified, the landlord has a reasonable time to carry out the repairs. What is reasonable depends on: the urgency of the defect (a broken boiler in winter requires faster response than a cracked wall); the complexity of the repair; material availability; and the landlord's need to obtain access. A landlord who begins investigating the defect promptly and carries out the repairs within a reasonable timeframe will not be in breach, even if some delay occurs. Landlords should document all steps taken to investigate and remedy defects
• Defence 3 — tenant refused access: The landlord's s.11 obligation is conditional on the landlord having access to carry out the repairs. Under s.11(6) LTA 1985, the landlord has a right to enter the premises (on 24 hours' written notice) to inspect the condition of the property. If the tenant refuses access, the landlord is not in breach of the repairing covenant — the landlord cannot repair what the tenant prevents access to. Landlords should keep written records of every access request and every access refusal
• Defence 4 — tenant causation: The landlord is not liable for disrepair caused by the tenant's own acts or omissions. The tenant has an implied obligation of tenant-like use — not to deliberately or negligently damage the property. Where damp or mould is caused by the tenant's failure to ventilate or heat the property (condensation damp), rather than a structural defect (penetrating or rising damp), the landlord may not be in breach. Expert evidence from a chartered surveyor or environmental health officer is essential to establish the cause of damp and distinguish between condensation and structural damp
• Counterclaim for rent arrears: Where a tenant brings a disrepair claim and is simultaneously in rent arrears, the landlord can counterclaim for the arrears. The court will assess both claim and counterclaim together and set off the amounts. Where the counterclaim exceeds the claim, the landlord will receive the net amount. This provides leverage for settlement — a tenant with significant arrears may agree to discontinue the disrepair claim in exchange for the landlord's agreement not to pursue the arrears

Frequently asked questions