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  1. Provide the tenant with quiet and peaceful enjoyment of the property without interference
  2. Maintain the property in a habitable condition

Just because you have not provided, for example, a Gas Safety Certificate, an Energy Performance Certificate or carried out various work that you were told to do by an authority or have been asked to by your tenant, this does not give the tenant an automatic right to withhold rent payment.

There is however one exception which allows the tenant to withhold rent in specific circumstances.

A fundamental duty on the landlord is the undertaking of repairs to the interior and exterior structure and installations when required, as set out in Section 11 of the Landlord and Tenant Act 1985.

If you as a landlord fail to attend to required repairs within a ‘reasonable’ time after the tenant has reported them, then you may be in breach of your repairing obligations.

By delaying or refusing to get the work done, the tenant has a ‘common law’ right to carry out the repairs themselves. The tenant can then deduct the cost of these repairs from the rent.

The rules for this action are strict and can only be used in specific circumstances. It is known as the Rule of ‘Set Off’ and the procedure is as follows:

Rules of ‘Set Off’

If the tenant wishes to withhold rent for repairs, they will be able to do so under the following circumstances and they must follow the steps below to be able to legally set off the cost of repairs against the rent.

The tenant must write to you the landlord or your agent making you aware of the required repair and giving you a reasonable time to remedy it.

Once this time has passed and should you not have responded, the tenant should inform you (again in writing) that they will arrange for the repairs to be undertaken unless you comply with your repairing obligations, allowing you a further reasonable period to do the work.

The tenant must then obtain a minimum of two estimates for the cost of the work from reputable contractors.

The tenant must then write to you again, enclosing copies of the estimates and reminding you of your obligation and giving a further reasonable period to carry out the work. The letter will act as a warning that, unless the work is carried out, the tenant will organise it and deduct the cost from the rent.

Then if you still do not respond the tenant can arrange for the contractor (giving the best value for money to do the work) to carry out the work and obtain (and send to you) the invoice/receipt(s), with a request for payment.

If you still refuse to settle this account, the tenant may then deduct the costs from the rent and send you a breakdown of the amounts and period of the rent to be withheld.

Damages

Should the tenant decide not to use their right to Set Off, they must pay the rent and then deal with the contractual breaches separately. The tenant can do this by making a claim for damages against you. These are contractual damages they are entitled to as a result of you not keeping to the terms of the tenancy agreement. These damages are claimed in the same way you can claim damages for breach of any contract.

Legally, a tenant cannot just withhold rent in the belief that it covers what they would be entitled to for the damages. Only a county court judge can decide if a tenant is entitled to these damages.

Note

Only the cost of the repairs required under the Act can be withheld from the rent. Any other deductions may be mutually agreed between the parties (preferably in writing) i.e., compensation for the work not being carried out in a timely fashion or other repairs carried out that do not fall under the Act.

This right is limited to situations where the tenant has informed you, or your agent, what they intend to do, and they should not undertake the work before making you aware.

What is a ‘reasonable time’? This will depend on the issue in question and how urgently action is required e.g. heating and hot water in the middle of winter, electrical wiring, blocked pipes.

TIP – Keep a diary of events and obtain as much evidence as possible in writing

 

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