In Breaks v Rimkiene (QBD) the Court considered whether a landlord who had a duty to repair a damp problem had interfered with the repair process by claiming incorrectly that the tenant had refused access for the repairs to be completed.
The landlord issued a claim for possession and the tenant counter-claimed for disrepair, claiming that there was damp in various rooms of the property.
The landlord had instructed an agent to represent his interests and they attempted to make an appointment for the landlord's contractor to attend the property. The agent alleged that the tenant did not want any work to be carried out while she was in occupation, however she was happy for the contractors to inspect the property. The agent also alleged that the tenant had failed to make appointments for the landlord's contractor to attend the property.
The Court considered emails between the landlord's agent and the tenant's solicitor, which demonstrated that the agent had cancelled an initial appointment and asked the tenant to provide alternative times and dates. When the tenant's solicitor suggested the agent put forward an alternative time and date, the agent determined that the tenant was refusing to co-operate. Throughout the following week, the landlord's agent had sent emails to the tenant pressing the tenant to agree to disputed matters in the expert's reports or agree to the appointment of another expert. The tenant did not respond to any of these emails.
For technical reasons, the landlord's claim for possession was dismissed however, the tenants counterclaim for disrepair continued to trial. The landlord alleged that the tenant had prevented him from carrying out his duty to repair by refusing access.
At first instance, the Judge held that the landlord's agent had derailed the repair process and that a period of 18 months had lapsed whereby the landlord could have taken further steps to rectify the disrepair. Therefore, the landlord was liable to pay damages for this 18 month period.
The landlord appealed this decision to the High Court which concluded that the tenant had not refused to allow the landlord access. The Court found that it was the landlord's agents aggressive reaction that had derailed the repair process.
This case clearly highlights the importance of carrying out repairs as quickly as possible and working with the tenant and their solicitors (if any) in order to come to a mutually convenient time to inspect properties. Although many landlords are faced with difficulty in obtaining access, landlords should make all efforts to arrange an appointment and ensure they maintain clear written records of the access attempts.
