DPS adjudication case study: rent arrears vs property condition

The Deposit Protection Service (The DPS) keeps deposit money safe for letting agents, landlords and renters during the course a tenancy. Its free, government-accredited custodial tenancy deposit protection scheme has protected over five million deposits over the last decade.

Its Dispute Resolution Service allows landlords, letting agents and tenants to resolve disputes without resorting to lengthy or expensive court procedures, and over the last decade has adjudicated over 60,000 disputes.

In our adjudication case study series, The DPS’ head of adjudication, Alexandra Coghlan-Forbes, is going to share examples of recent, real-life case studies with us.

She talks us through the guidelines that affect the way her team reaches decisions to help agents and landlords understand the process.

Our sixth case study looks at charges levelled at what happens when a disagreement over rent arrears and property condition collide…

The situation 

A tenant disputed their landlord’s claim for £2,921.94 to cover rent arrears, arguing that they had not in fact been able to live in the property during that period.

They said that, having developed concerns about the boiler, they had invited the local council to inspect the property, who had agreed that the boiler was unsafe and in need of repair. As a result, they had been forced to move out until it was fixed. 

In England, judges alone have the responsibility for deciding whether a property is fit for human habitation following a Country Court hearing. Such hearings can involve testimony of expert witnesses and the chance to ask both tenant and landlord questions.

As The DPS Dispute Resolution Service bases adjudication decisions on written evidence alone, if a tenant’s claim depends on demonstrating that a property is unfit for habitation, they should use the courts rather than agree to resolve their claim through our Dispute Resolution Service. 

In this example, the tenant had not sought redress through the courts. In addition, they did not provide any evidence that they had reported the boiler issue until four months after they claimed it had begun.

On the other hand, the landlord argued that the tenant’s claims over the boiler had only begun ‘three or four’ months into the tenancy. They also produced evidence in the form of letters, emails and itemised telephone bills showing calls with the tenant, engineers and the local authority that backed up their claims that:

- They tried to contact the tenant to arrange an appointment for an engineer to inspect the boiler, but the tenant had stopped answering calls. 

- They arranged for an engineer to visit the property to inspect the boiler (following contact from the local authority), but when he had arrived at an arranged time, the tenant was not at home.

- They arranged for the engineer to return the following day, and that they had been able to make a temporary repair. 

- The tenant informed the landlord that the boiler pressure was wrong again two days later.

- They arranged for an engineer to attend that same day, that they had been able to access the property using the landlord’s key while the tenant was out and that they had repaired the boiler.

- The tenant made a payment of £233.06 towards the rent arrears a month later. 

- The tenant had told the benefits office (but not the landlord) that they had moved out around a month later. 

- The tenant told the landlord they had moved out the following month but did not return the keys until the month after that. 

Decision

The DPS found in favour of the landlord. Beyond the landlord’s compelling evidence that they had arranged for a contractor to fix the boiler as soon as he had been able to access the property, and that it had been working when the tenant had moved out – as well as the lack of evidence to support the tenant’s claim – there are very few circumstances in which we can rule in favour of a tenant who alleges a property was uninhabitable as part of the argument during a tenancy dispute unless they have already convinced a judge at a County Court hearing. 

Key legal considerations

It is the Homes (Fitness for Human Habitation) Act 2018 that gives County Courts responsibility for deciding whether a property is fit for human habitation.

The legislation is designed to ensure that all rented accommodation is fit to live in and provide a means of redress for tenants living in unsafe properties. It came into force in England on 20 March 2019.

It extends to England and Wales but its practical changes only apply in England as, in Wales, the topic of human habitation is covered by Section 91 Renting Homes (Wales) Act 2016.

*Alexandra Coghlan-Forbes is head of adjudication at The DPS