Do I Have a Counterclaim Against My Landlord?
If a tenant has a counterclaim against their landlord it may have the effect of postponing a possession claim. Here, we consider the position where a private landlord issues possession proceedings against a tenant who has an assured shorthold tenancy.
Defences to repossession cases based on rent arrears are rare. Most unsuccessful repossession cases fail because the landlord has failed to follow the correct procedure either before or during the repossession case. However, if a tenant appears to have a counterclaim against their landlord, a judge may be reluctant to make a repossession order until the counterclaim has been resolved.
Counterclaims Based on DisrepairOne of the most common counterclaims raised by a tenant against possession proceedings is one based on disrepair. A tenant may claim that there are faults or problems with the property which the landlord has failed to address. Whilst a failure to have a fault repaired is contractually unlikely to justify withholding rent, the tenant might argue that any money they have spent on the property, or any damages to which they are entitled, should be set off against the rent arrears.
A counterclaim based on disrepair may lead to a possession case being adjourned until the validity and / or value of the counterclaim can be assessed by the court.
Arguments in Relation to Disrepair CounterclaimsThe landlord may say that the counterclaim is only relevant to any money judgment being sought. Therefore, if a repossession case is not dependent on rent arrears, a possession order should still be made. The landlord could try to convince the judge that the counterclaim and / or money judgment can then be decided at a later date.
This could apply where the landlord served a section 21 notice on the tenant requiring them to leave the property after two months. A section 21 notice does not require a tenant to be in rent arrears to be valid. As long as the notice is correctly worded and served it is likely to entitle the landlord to repossess the property. However, the courts are often willing to adjourn a repossession case so that the tenant can fully set out the basis of the alleged counterclaim.
A landlord may find it more difficult to argue that any counterclaim is a separate issue if a repossession case is based on a section 8 notice served on the tenant due to rent arrears. If a tenant raises the possibility of a counterclaim in this kind of case a court may be more willing to adjourn or give directions in relation to the alleged counterclaim. If a tenant does have a valid counterclaim it could reduce the arrears to a level where the court has more choice about whether or not to grant a repossession order.
Deposits and CounterclaimsLandlords with tenancy agreements which started after April 2007 must place the deposit in an approved scheme. Failure to do so could either invalidate any claim for possession or give rise to a counterclaim by the tenant. A landlord who has not placed the deposit in an approved scheme could be liable to pay the tenant a penalty of three times the deposit. This could have the effect of eliminating the arrears or reducing them to below a level which entitles the landlord to a mandatory possession order.
Judges may simply strike out a possession claim if the deposit was not placed in an approved scheme. However, the landlord could then put the deposit in a scheme and start a fresh set of possession proceedings.
Harassment and CounterclaimsA tenant who is faced with eviction may be able to bring a counterclaim on the basis of harassment by the landlord. Depending on the circumstances it may be argued that the landlord has breached their obligation to allow the tenant quiet enjoyment of the property. Repeated visits to the property or attempts to discuss the arrears could be said to amount to harassment - leading to a counterclaim for damages.
If the court considers that a tenant has a valid counterclaim the case could be allocated to the Fast Track. Tenants should note that the legal costs of a Fast Track trial can be high - and that the tenant could be ordered to pay the landlord’s legal costs if they lose the case.
Cases of serious harassment of a tenant by a landlord are rare but may constitute a criminal offence. Therefore, if a tenant feels threatened or is forcefully evicted from a property this should be reported to the police and / or the local authority so that the appropriate action can be taken against the landlord.