What are your obligations as a landlord in the event your tenant stops paying rent? What if you can’t afford to repair the property because the tenant has stopped paying their rent and what happens if you try to evict a non-rent paying tenant who lives in a property in disrepair as a result of non-payment of rent? Harry Albert Lettings & Estates, one of Leicester’s leading online letting and estate agents based in the Belgrave area of Leicester specialising in maximising the returns landlords receive from their rented properties is here to tell us all about landlord obligations towards tenants who are in rent arrears.
Landlords are under no surprise that they have to keep their tenant’s homes in good repair. It’s common knowledge that this is a legal obligation. However, new landlords, accidental landlords and even some well-seasoned property investors don’t realise these obligations still apply even if your tenant stops paying the rent. This means landlords are responsible for maintaining the good condition of:
- The property’s structure and exterior
- Basins, sinks, baths and other sanitary fittings including pipes and drains
- heating and hot water
- gas appliances, pipes, flues and ventilation
- electrical wiring
- Supplied furnishings / furniture / appliances
- any damage they cause by attempting repairs
Landlords are usually also responsible for repairing common areas, for example staircases in blocks of flats. Check your tenancy agreement if you’re unsure but can transfer this responsibility to the tenants where it is reasonable to do so, for example, if a mid-terraced property has been converted into flats, one on each level, each tenant could be responsible for maintaining the cleanliness of their respective landing; this may be deemed unfair for those on lower levels where they will effectively be cleaning up after the other tenants who pass through their landing to enter their own properties.
But, what do you do when your tenant stops paying the rent and has the audacity to request repairs are made to the property? Do you have to carry out the repairs? The short answer to this is a resounding yes. Whilst the longer answer is still yes and the reason for this is, should you need to evict the tenant (why wouldn’t you if they’re not paying the rent?), your tenant may have a defence in court as a result of the disrepair of the property.
A judge is more likely to side with them if the repair was reported to you prior to the non-payment of rent, however, even if the repair is reported after rent arrears have accrued, you’ll still need to carry out the repair because not doing so will provide the tenant with a defence from the point the repair was reported. On top of this, if you attempt to evict the tenant after a repair is reported to you which you have not carried out, it may be considered a revenge eviction and this is a criminal offence.
To evict a tenant under non-payment of rent will mean serving a Section 8 notice on your tenant, this can only be done once the rent arrears amount to more than two months or eight weeks of rent, dependent upon whether rent is paid monthly or weekly so if a tenant reports a repair after just one missed rent payment, when you issue the Section 8 at the end of the payment term of the second month and the correct process has been followed in terms of serving the notice, if you haven’t carried out the repair, it could be considered a revenge eviction. It is something worth bearing in mind because possession will only be awarded if the correct processes are followed. Therefore, during periods of non-payment of rent, it is even more important to act on repair requests because not doing so could impede your chances of actually being granted possession by the judge.
The trick is to give the defendant (your tenant) no form of defence they can rely on in court which may make the judge sympathise with or show favour to the tenant. If you can show that you have upheld all of your landlord obligations throughout, your non-paying tenant will not be able to use the defence of withholding rent to cover the cost of their own repairs.
It is not uncommon for tenants to tamper with their boiler and claim their landlord has refused to fix it or otherwise claim disrepair, claim they haven’t received notice, claim they’ve paid rent which they haven’t or claim the landlord hasn’t adhered to their legal obligations. As such, it is important to cover any and all eventualities. Of course, you can’t restrain your tenant from tampering with the boiler but you can have a professional tradesperson inspect any works before repair and, in the case of malicious damage (or, in the case of tampering with gas appliances, criminal behaviour) or tampering, could provide a report which you can use as evidence in court (and passed on to other relevant authorities where necessary, including the police in the event of criminal damage or other criminal behaviour).
Tenants do have a defence to withhold rent should repairs not be carried out. In such circumstances, they should retain the money to be able to pay off the rent arrears in the event possession proceedings are begun. This will mean their arrears will come below the required threshold of eight weeks or two months, as above, therefore invalidating your Section 8 notice.
Tenants can also use this withheld rent to pay for repairs themselves. In doing so, the cost of repairs should be reasonable and receipts should be kept; any leftover rent should be paid back to the landlord. For a tenant to use rent to pay for the cost of repairs, they have to follow a specific, seven step process which is:
- The tenant should first report the repair to the landlord in writing and allow a reasonable amount of time for the work to be carried out. Evidence of this should be provided to the court if the landlord is looking to evict their tenant using the Section 8 mandatory ground of non-payment of rent.
- If, after a reasonable amount of time (which can vary depending on the risk posed by the disrepair, for example, a burst water pipe would need to be repaired within days whilst a broken fence ca be repaired in a few weeks), the landlord still hasn’t carried out the repair or begun works, the tenant should remind the landlord of the repair reqest, again, keeping evidence of the written reminder.
- If the landlord still fails to do the repair after another period of reasonable time, the tenant should then get three quotes for the cost of the work from properly qualified, genuine contractors.
- The tenant, once the quotes are obtained, should send final notice to their landlord with the three quotes attached warning them that the tenant will carry out the works themselves using the withheld rent to pay the contractors should they fail to carry out the repair within fourteen days. Again, evidence of this should be retained by the tenant, as well as a copy of the quotes for themselves.
- If the deadline passes and the landlord still fails to carry out the repairs, the tenant should arrange for one of the contractors to do the work. The courts will expect the tenant to choose the contractor who provided the lowest quote. The tenant will then be obligated to keep any invoices for the works.
- Once the work has been completed and the work paid for, the tenant should send another letter to their landlord to explain that the work has been completed and that they would like the landlord to pay the money they paid to the contractor back to them. The tenant should keep a copy of this letter and the invoice for the works.
- If the landlord fails to respond or pay the money back to the tenant, the tenant will then have a legal right to deduct the cost from the future rent but not from any service charges or other charges. The tenant will be obligated to send the landlord a breakdown of the amounts deducted, when they will be deducted and when deductions will end and exactly what the deductions are for. The tenant should also keep a copy of this letter too.
The tenant may also choose to deduct the costs from any rent withheld, in which case, once the repair has been completed and costs deducted, they should return the leftover monies to the landlord. The tenant should not withhold service charges or other charges associated with their tenancy agreement.
It is always advisable for a landlord to carry out the repair works instead of the tenant because, although the tenant is responsible for the quality of works when they instruct a contractor, if it goes wrong, they’ll be responsible for putting it right… Unless they move out, in which case, you’ll experience a whole new headache as you go through the courts to recover damages.
Another reason it is best for the landlord to do the works, as already mentioned, is in case your tenant claims revenge eviction. If the property is in a state of disrepair after the tenant used unqualified tradespeople to ‘repair’ the damage you refused to repair yourself and you try to evict them, it is likely to be considered a revenge eviction making a section 21 notice invalid whilst the tenant will have the defence of disrepair for non-payment of rent when using Section 8.
For landlords who are still unsure or otherwise overwhelmed by the amount of information provided, we recommend getting in touch with us about our property management services. Alternatively, we host a free drop-in Landlord eClinic right here on Leicester Property Insight every weekend from 10am until 7pm Saturday, Sundays and on Bank Holiday Mondays. We provide a range of services including:
- Full Property Management (at a monthly charge of just 7%)
- No Fee Sales
- Short-Term Accommodation Management
To conclude, as a landlord, it is always in your best interest to carry out repairs even when your tenant stops paying the rent, even if this means taking out a short-term loan to cover the cost of the most hazardous repairs (though you should really have contingencies in place to cover any costs, including insurance and budgets to avoid having to take out a loan in the event of non-payment of rent). Another key takeaway from this is to remember to remove any form of defence from a non-rent paying tenant to avoid any likelihood of the judge favouring your tenant and the best way of doing this is to adhere to your legal landlord obligations even when your tenant fails to adhere to theirs. You can protect yourself in future using our rent guarantee insurance products which also covers your legal costs to evict the tenant in the event of non-payment of rent.
- Affordable Property Management: https://www.leicesterlettingagent.co.uk
- Comprehensive Property Services: https://www.harryalbertgroup.co.uk
- A Landlords Guide to ‘Right to Rent’: https://www.leicesterpropertyinsight.co.uk/free-guide-landlords-guide-right-rent