Counsel & Conversation | S1 E2: Property Disrepair & Hoarding | Swinburne Maddison

Caroline Smith 0:06
Welcome to Swinburne Maddison’s Counsel & Conversation, where our expert lawyers talk about everyday legal scenarios. Today, I’ve got with me Lewis Brown, who is a managing associate on our dispute resolution team, who specialises in property litigation. So, welcome Lewis.

Lewis Brown 0:22
Thank you.

Caroline Smith 0:23
In terms of the structure of today, I’m going to read a scenario to you, and it would be good to understand whether that’s a relatively common scenario that you see day to day, and then it would be good to sort of ask you a few questions about it.

Lewis Brown 0:37
Yeah, of course.

Caroline Smith 0:38
So let’s kick off. A landlord is pursued by their tenant for a property disrepair claim when it was discovered that there is a hoarding issue. So, straight away, is this a fairly common situation?

Lewis Brown 0:53
It’s not something that we necessarily see all of the time, but absolutely, since Covid we have seen more of it. When it does come about, it can be a real, serious problem for landlords. Hoarding is really quite an upsetting situation, and it’s recognised by the NHS as a mental health condition, in that the individual collects an excessive number of items, often of little to no value, resulting in unmanageable clutter. Often, the individual doesn’t really appreciate the extent of what’s happening and doesn’t realise that their behaviour is detrimental to themselves and to others.

Caroline Smith 1:34
Yeah, it makes sense. And in this scenario, we’re talking about the tenant themselves actually raising a claim about property disrepair, so almost suggesting the landlord is at fault. Again, is that something that can happen where it’s almost twisted around the other way? How is that then resolved?

Lewis Brown 1:51
Yeah, it can be. So we have lots of different kinds of clients, whether those be private individuals, local authorities or other registered providers of social housing who are pursued by tenants for disrepair claims. Often, what happens is these tenants are signed up en masse by claimant firms under no-win-no-fee agreements, and pursue in bulk claims against the landlords alleging disrepair in the property. Sometimes the claims have merit, sometimes they don’t –  but the first step, really with these claims, is to carry out an inspection of the property to investigate what’s being alleged and just to see what’s actually going on there.

Caroline Smith 2:31
I imagine that then it means the tenant themselves has to allow the landlord into the property, or somebody in to inspect it. Can that sometimes happen where they don’t?

Lewis Brown 2:44
Yeah, absolutely. So in our experience, sometimes the tenants are quite keen to sign up to claims, which are being pursued en masse by the claimant firms. When it comes to the reality of letting someone into the property, people can be reluctant, especially if they are embarrassed by their living conditions, and don’t necessarily want what’s been happening to come to fruition.

Caroline Smith 3:06
So how does that then begin to play out legally? In that situation, what would happen? How would the landlord eventually get access to inspect the property?

Lewis Brown 3:18
In the context of a disrepair claim, if there’s no access for an inspection, then the tenant, as the claimant, isn’t really able to prove their claim, and the claim isn’t able to proceed further.
In theory, this is a good thing for the landlord, because the claim kind of fizzles out, and they don’t have to defend it as such, but then they are on notice of the tenant’s allegations of disrepair. There will still need to be some kind of inspection at some point, which, as a responsible landlord, particularly in the social housing provider setting, a landlord would want to get access just to make sure everything is okay, and everything is safe in the property and they will follow the usual process of trying to get access in line with the terms of the tenancy agreement.  The tenancy agreement will no doubt have a clause saying that, for example, 24 hours’ written notice is required for the tenant to allow access to the landlord to carry out an inspection. If that doesn’t happen, if the tenant refuses, then there are legal avenues available to the landlord to try and get access.

Caroline Smith 4:21
That sounds like it’s probably quite a long and painful process, is it?

Lewis Brown 4:25
It is, it is. Landlords need to really have lots of evidence gathered by way of letters, emails, and phone calls to show that they really have exhausted their internal procedure to get access before taking that more aggressive action of pursuing an injunction against the tenant to essentially get an order from the court compelling them to give access.

Caroline Smith 4:50
So, going back to this scenario, if the tenant had raised the claim against the landlord to say that there was some property disrepair during that process. The landlord then establishes that there’s someone living there and they’re hoarding, which in itself, presumably, can cause some issues for the property. What can the landlord do in that situation?

Lewis Brown 5:12
So if the inspection does go ahead and we get a report setting out what allegations have merit and which don’t. It can sometimes be quite complicated for the expert to work out exactly what falls within the landlord’s repairing covenant and what has actually been caused by the tenant’s own conduct. But if, for example, there is a defective window at the property that’s really drafty, or the front door is defective instead, or there is structural damp in the property, those are issues that still fall within the landlord’s repairing costs. They’re not able to just wriggle out of a claim just because there are hoarding issues. But on the flip side of that, if there is a room cluttered with lots and lots of items, which means it isn’t very well ventilated, causing damp mold, then the landlord could perhaps reasonably say in that situation, that had it not been for the hoarding issue, these defects in the property wouldn’t have come about, and therefore they wouldn’t be liable. So we’re really dependent upon the expert evidence that we get at the time of the joint inspection, just to see, as well as photographic evidence, as well as from that joint inspection, to try and work out what we’re exposed to from a liability point of view.

Caroline Smith 6:22
So, in this scenario, when would you suggest that somebody would get legal advice? Right from the outset, or once an inspection has either happened or when the tenant is preventing them from getting an inspection?

Lewis Brown 6:38
We would encourage our landlord clients, as soon as they receive a letter of claim, to get in touch with us because as soon as a letter of claim comes about, that’s when the housing conditions protocol kicks in. That’s when there are certain timeframes for the landlord to respond and also to arrange an inspection of the property. In our experience, it is much better to arrange a joint inspection of the property with our own instructed expert, as well as the tenants instructed expert, just so the parties can get their heads together and narrow any issues together on site and conduct the same testing in front of each other and when the weather conditions are the same and everything like that, just to ensure that there is consistency into narrow issues. There’s a lot to think about in the very beginning upon receiving the letter of claim.

Caroline Smith 7:26
Just thinking about the scenario and the fact that somebody who is hoarding, therefore, might not want the landlord to come into the property. What other issues might that create for the landlord?

Lewis Brown 7:38
It can really cause some problems for landlords who need to comply with their own obligations under the contract and under statute as well. So, for example, landlords need to carry out an annual gas safety check as well as electrical checks, which are, albeit less frequent, maybe every five years, but five years soon come around. If access isn’t given, then it can be a problem, and landlords want to get on and do the checks so they do not fall foul of their own obligations. Landlords are often forced down the legal route, by way of getting an injunction, compelling the tenants to give access, because otherwise, if the tenant is simply not allowing access, regardless of the amount of correspondence that’s sent to the tenant requesting that, then it can be a real issue for the landlord to force down the avenue.

Caroline Smith 8:26
Can we expand a little bit on the types of hoarding and what? What risks of hoarding in itself might bring to somebody, bring to a landlord?

Lewis Brown 8:34
What we’ve seen in the past is that hoarders can collect an enormous amount of combustible materials. So, your classic example of the types of items that hoarders will collect would be newspapers, magazines, books, and large quantities of receipts. The real danger here is that these are all combustible materials. If there is a fire in the property, it’s not only going to be a real danger to the tenant themselves, but also those living in the vicinity, especially if we are talking about a block of flats. As well, you know, we’ve seen extreme cases of hoarding where it’s just a dangerous situation, with things stacked piled high and could easily topple on someone, whether that be the tenant or contractors working in the property. It’s an unsustainable situation, really, which needs to be resolved.

Caroline Smith 9:26
So really, from the outset, once a problem is discovered, legal advice is needed at that point for a landlord to understand what they’re able to do and hoping it wouldn’t progress to an injunction. But it might, if need be, because you wouldn’t be able to fulfil your requirements as a landlord either.

Lewis Brown 9:46
Absolutely. It’s a very upsetting and often sad situation at times, and landlords, in our experience with our clients, are often very keen to help the tenants, but on the flip side of the coin, they don’t want to fall foul of their own obligations. So action does need to be taken to ensure that they’re not subjected to a claim being made against them.

Caroline Smith 10:06
What can a landlord do?

Lewis Brown 10:08
If all informal steps have failed to try and resolve the hoarding issue, despite however many attempts the landlord has made to try and help the tenant and to improve the situation, if all of that results in the situation not having improved and the continuance of the hoarding problems, then unfortunately, court action is the way to go. That would either involve pursuing the tenant for an injunction or pursuing possession of the property. With an injunction, that would involve applying to the court for an injunction, asking the tenant to be compelled to improve the condition of the property by disposing of certain items and to basically bring it into a safe state to be living in. But if that doesn’t work, then the landlord may wish to pursue possession instead, which is a particularly aggressive route to go, and we wouldn’t advise that it’s the first route to go down, because, as we’ve discussed, hoarding is a mental health condition. The courts wouldn’t be impressed with landlords taking a particularly aggressive approach without really trying to understand the situation and to help the tenant. But if all else has failed, it’s clearly not in the landlord’s interests to have a property that is left unsafe. It is unsustainable, and getting possession of the property back and improving the condition of the property themselves is something that the landlord might have to do, unfortunately, in some severe cases.

Caroline Smith 11:29
What practical tips would you recommend to a landlord who was in this situation?

Lewis Brown 11:34
What we have found in our experience is that often hoarding is an issue behind closed doors and lies undiscovered until there is an inspection of the property. Landlords don’t necessarily need to wait for a disrepair claim to be pursued against them before inspecting the property. Rather, a good and responsible landlord should be carrying out routine checks. So, the number one tip is to carry out inspections of the property on a regular basis, and if there are concerns of hoarding, just to make sure that is noted and to be specifically reviewed at the time of the next inspection. What’s key with these inspections is to take photographs. If there are concerns of hoarding, take photographs of the condition of the property, then there’s a benchmark to refer back to and to see whether the position is worsened or improved. It’s just evidence that the landlord may need if court action is needed later down the line as well.
With hoarding cases that we’ve been involved in, the tenants often have social workers on the scene who are helping them with their day-to-day life, so to make them aware of the hoarding situation and to bring in extra people to assist can really make a difference. But if there aren’t social workers already on the scene, the landlord could really be signposting the tenant to mental health services and encouraging them to get help, given that it is a recognised mental health condition.

Caroline Smith 12:56
It’s a very complex subject, and obviously, we started with a scenario where it seemed on the surface like a simple disrepair claim, and actually, we’ve opened up the complexities there and something that, sadly, you are dealing with quite regularly. It’s been really interesting talking to you today. So, thank you for giving up your time.

Lewis Brown 13:15
Thanks, Caroline. Thank you.