Court action over disrepair

A claim for damages of less than £5,000 can be raised as a simple procedure, in which case advisers will be able to represent their client in court (for further information, please see the section on courts and legal action). However, advisers should refer all claims for damages in excess of £5,000 and all claims for specific implement to a solicitor. Such actions are often lengthy and complex, requiring detailed specialist reports and court documents. Legal aid may be available for this type of action. For more information, see the page on Simple procedures (formerly Small Claims).

Compensation falls into four main categories, but it should be noted that this is compensation for all reasonably foreseeable loss that has arisen from the landlord's failure to carry out repairs within a reasonable period of time after being told of the need for them.

If a tenant's property is damaged or destroyed as a result of the landlord's failure to carry out repairs then the tenant can claim compensation. The sum to be awarded is the amount which will put the tenant back in the same situation as s/he would have been in if there had been no fault on behalf of the landlord. In some situations that amount will be the second-hand value of the goods destroyed if there is a second hand source of replacements. If however there are no second-hand replacements available the cost of a new replacement can be awarded, for example the cost of new bedclothes . Property damaged as a result of the landlord's failure to repair can include clothing, bed linen, furniture, carpets and redecoration (including labour costs). A claim can also be made for property damaged during repairs. [1]

If representing a client in a simple procedure it is useful to have the damaged property to display to the court as well as receipts to show that things have had to be replaced.

Any claim for compensation must be made within five years of the damage occurring, unless the tenant did not become aware of the damage until more than five years had passed. [2]

Damage to health can be either mental or physical and it can be suffered by the tenants or their children.

If the damage is to the tenant's health then the action is based on breach of contract. If the damage is to the children's health, then the action is based on the Occupiers Liability (Scotland) Act 1960 section 3 (see below). Children living in cold and damp housing frequently suffer from asthma.

The amount of damages claimed and awarded will depend on the severity of the illness. A link must be demonstrated between the disrepair and the health problem. This is known as causation. However the disrepair does not have to be the only cause of the tenant's health problems; it must simply be a materially contributing factor.

Any claim for compensation for damage to the tenant's health must be made within three years of the problem occurring, [3] unless the tenant did not become aware of the health problem until more than three years had passed. [4]

A tenant is entitled to claim compensation if s/he has suffered inconvenience as a result of the landlord's breach of duty. In the past tenants have been awarded damages for the inconvenience of living in a house that smelled and was damp and for having to repeatedly clean the house because of dampness and water penetration. [5]

The amount awarded by the sheriff will depend on the level of disrepair and the effect it has had on the tenant. Awards of £500 for nine months [6] and £650 per year [7] have been made.

A claim for damages for any inconvenience caused must be made within five years of the inconvenience occurring. [8]

There is a right to an abatement of rent when the tenant has not been able to use either all or some of the house due to the disrepair. How much of the rent is abated will depend on how much of the house is uninhabitable: if no part of the house is inhabitable 100 per cent of the rent may be abated, but if only part of the house is unusable then the rent will be reduced proportionally. Abatement of rent is often claimed under the heading of 'inconvenience', but both can be claimed unless the inconvenience is that the tenant has not been able to use part of the property and an abatement of rent is sought for the same thing.

An action of specific implement is an action to force someone to do something, for example to force the landlord to carry out certain specified repairs within a specified period of time or s/he will have to pay a specified sum of money.

Tenants looking to enforce repairing rights in the private rented sector now have the option to take their case to the First Tier Tribunal (Housing and Property Chamber).  As such its unlikely to be appropriate to raise court action for specific implements in relation to repairs in the private rented sector.

However, tenants of registered social landlords such as housing association or council tenants may still wish to raise action of specific implement.

If the sum of money sought instead of the repairs is less than £5,000 then the action can be raised as a simple procedure.  However, a practical problem with actions of specific implement is that the court document must detail exactly what work needs to be carried out. In the past this has led to problems:

• where there is not enough detail given so the landlord is unsure of what exactly has to be done,

• where the landlord avoids the responsibility because of a lack of 'specification' in the remedy sought,

• or where the detail given is so complex that the crave (request to the court) has to go on for several pages.

For this reason, it is recommended that actions of specific implement are referred to a solicitor.

If the sum of money sought instead of the repairs is more than £5,000 then the action will have to be raised as an ordinary cause action, in which case legal representation should be obtained.

The Occupiers Liability (Scotland) Act 1960 can be used by people who are not tenants but who are injured as a result of the landlord's breach of her/his duty to repair. This is often used to claim damages for the health problems suffered by a tenant's children as a result of living in a damp, cold and mouldy house. Other examples of cases under this act include damage caused by flooding as a result of the landlord's failure to lag water pipes in the roof [9] and injury caused by a broken toilet bowl. [10]

The duty imposed on landlords by the act is to take reasonable care to avoid any risk to the health and safety of any person living in a property over which s/he has control. [11]

In addition to being able to raise action to enforce repairs under the Repairing Standard, private tenants may also be able to claim for compensation or damages under 'civil proceedings'.  Generally the tenancy type will determine under which rule the application should be made. The relevant Forms can be found on section on 'civil proceedings' on the tribunal website. Where a claim is being made for statutory damages or damages under common law there are specific requirements in terms of evidence and it is strongly advised that the client is referred to an experienced housing law solicitor. Legal Aid may be available for this type of action.