Self help in leasehold property management

Last updated: August 2023 | 5 min read

What is self help in respect of residential leases?

Self help pertains to a legal provision that empowers tenants, including leasehold property owners, to remedy disrepair situations themselves, particularly when landlords or freeholders are lax in fulfilling their obligations.

For instance, when a necessary repair is overlooked by the landlord, a tenant may carry out the work and recover the cost.

UK law endorses the self help principle in specific circumstances.

The 1985 Landlord and Tenant Act, Section 11, underscores the landlord's obligation to maintain the property in good repair. However, if the landlord fails to do so, the law indirectly acknowledges the tenant's right to exercise self help.

How does a self help clause work in leasehold situations?

Self help provisions within leases generally operate as a safety net, facilitating tenants to step into their landlord's shoes when property repairs are neglected.

As a tenant, if you encounter disrepair in your property, you may use your self help rights to address the issue.

After serving notice to the landlord and providing a reasonable period for them to respond, you can arrange the necessary works yourself.

Subsequently, you might be entitled to deduct the repair costs from your rent or recover them as a service charge.

Illustrative scenarios of self help rights in action

Imagine a leak in the common parts of your building, which your landlord has disregarded despite your notices.

Exercising your self help rights, you could contract a professional to fix the issue, bearing the costs initially.

Later, you may be able to claim these expenses back from your landlord or offset them against your rent.

In another scenario, suppose your landlord consistently fails to maintain the building's exterior in accordance with the lease.

Self help provisions could enable you to undertake the necessary works, again allowing you to recover the expenses incurred.

It's always advised, however, to seek legal advice before exercising your self help rights, to ensure you are acting in accordance with the law and your lease.

The tenant's ability to exercise self help

Although landlords are traditionally responsible for the repair and maintenance of a building, tenants, under certain conditions, have legal rights to remedy breaches and recover the cost.

The tenant's responsibilities for repairs

Broadly, tenants are responsible for maintaining the premises they inhabit, which is to say, the interior of their respective flats.

Generally, any disrepair within the flat's walls falls within the tenant's responsibility.

However, responsibilities may vary in different leases, so scrutinising the lease document can provide clarity.

When can a tenant exercise self help rights?

The self help clause springs into action when a landlord has failed to fulfil their obligations under the lease.

The tenant must notify the landlord of the disrepair, stipulating a reasonable period for the landlord to remedy the failure.

If the landlord still doesn't take action, the tenant may be entitled to carry out repairs.

Requirements for a tenant to exercise self help

The precise requirements are dependent on the lease terms, yet some general rules apply.

The tenant must have notified the landlord of the breach and allowed them a reasonable period to rectify it.

Additionally, the tenant should ideally obtain quotes for the repair to ensure that costs are reasonable. The tenant may also need to seek permission from their mortgage lender, if applicable.

Recovery of costs and forcing the landlord to undertake work

Self help is a tool which a tenant can wield cautiously, acknowledging the potential legal ramifications.

While it offers a practical remedy for landlords' failures, it may also provoke legal repercussions, impacting service charges and potentially leading to damages claims.

Impact on service charges

When tenants do repairs, they often wonder if they can recover the cost via an offset of their service charges.

However, the tenant's right to do this will depend on the specific provisions of the lease and whether the landlord's breach arises out of a failure to carry out works which should be paid for out of the service charge.

Specific performance

Specific performance is a court order that requires the landlord to fulfil their obligations under the lease.

It can serve as an alternative to self help, particularly in circumstances where the cost of repairs is likely to be high or the works are complex.

Obtaining an order for specific performance can be time-consuming and costly, though, and there is no guarantee of success.

Potential for a damages claim and legal action against the landlord

In some cases, the tenant might claim damages from the landlord for breach of the lease.

A damages claim can be made separately or alongside the exercise of their rights, but tenants should seek legal advice before proceeding.

Notably, the damages claim must be proportionate and justifiable in the circumstances, and the tenant must have taken reasonable steps to mitigate their losses.

Limitations and considerations

The extent of the tenant's ability and limitations to repair

A common myth among leaseholders is that self help is a universal remedy for every repair issue that might arise. However, this is far from the truth.

The extent of a tenant's ability to carry out repairs is largely defined by the terms of the lease, the property's condition, and the nature of the required repair work.

Significant works such as structural changes typically fall outside the tenant's jurisdiction.

Hence, a clear comprehension of the lease terms, combined with a professional assessment of the premises, often paves the path to a more practical solution.

Common challenges and how to address them

Even when a tenant is fully within their rights to invoke the self help clause, numerous hurdles may stand in their way.

For instance, they may face challenges in obtaining permissions or dealing with complex building regulations.

To mitigate these challenges, it is advisable to consult with professionals in the field, such as solicitors or qualified surveyors. Their expertise can often streamline the process, reducing the likelihood of potential hitches and ultimately saving time and cost.

When to seek professional advice

While it may be tempting to tackle repairs yourself to save on costs, it's not always the best course of action. Certain circumstances might warrant professional input.

For example, if the repair involves complex legal elements, breaches of the lease by the landlord, or if the landlord is resisting the tenant's efforts to exercise their rights.

Seeking professional advice in these situations can help you understand the full range of options available, which may not be limited to self help.

The landlord's obligations and responsibilities

Although the self help leasehold clause empowers the tenant to undertake repairs, the landlord remains a significant figure.

Fundamentally, the landlord's obligation to maintain and repair the building does not cease. They still hold the responsibility for major structural works and communal areas, and their failure to fulfil these duties might justify a damages claim from the tenant.

Responding to a tenant's notice for self help

On receiving a notice, they must assess whether it is justified or not. If the tenant's business of self help is deemed legitimate, the landlord should assist in ensuring that the works are carried out properly, whether that means granting permissions, providing access to certain parts of the premises, or more.

Dealing with the cost and expenses arising from tenant's self help

Finally, when the tenant undertakes repairs themselves, landlords are often subject to costs associated with this action. The lease generally allows the tenant to recover the cost of repairs from the landlord.

Consequently, landlords may find themselves having to pay for works carried out by the tenant, thus underscoring the importance of landlords fulfilling their own maintenance obligations in a timely manner.

Disrepair in leasehold properties: what can tenants do?

Notices, court proceedings, and other legal remedies

Legal avenues for redress persist when a building falls into disrepair.

Among these, serving a notice is a useful option, mandating landlords to rectify the failure. Leaseholders often turn to a Section 11 notice, under the Landlord and Tenant Act 1985, requiring the landlord to carry out works to the premises.

However, the recourse is dependent on the lease specifics and should be exercised after obtaining expert advice.

Should the landlord persist in their inaction, tenants may initiate court proceedings, such as asking to appoint an alternative manager or for the right to manage.

The 'Harris' clause, present in some leases, offers tenants the right to deduct costs of repair works from rent, post the landlord's failure to carry out obligations.

This, however, is subject to a successful damages claim against the landlord, which, like all legal action, can be time-consuming and cost-intensive.

Alternative approaches to maintain the property and fulfil lease obligations

Exercising self-help rights offers an alternative path. While the extent of work that can be carried out by the tenant is typically limited, this option can often provide quicker relief from the impact of disrepair.

However, tenants should be cautious when invoking these rights. It is crucial to thoroughly examine lease documents, as carrying out repairs without permission could be seen as a breach of the lease terms.

Upcoming changes to leasehold law

Leasehold law is subject to constant evolution, and self help provisions are not exempt from this dynamic flux.

Current trends point towards a greater recognition of tenant's rights, with ongoing conversations about introducing further protections for leaseholders.

A notable area of interest is the potential extension of the scope of self help rights, expanding the full range of repairs that tenants can carry out.

Changes in leasehold law are primarily driven by the need for a more balanced tenant-landlord relationship.

One such proposal suggests landlords be required to respond to a tenant's notice within a certain period or justify their failure. This could significantly aid tenants in cases where the landlord has been unresponsive.

Practical tips for leaseholders

Staying abreast of changes in legislation can be a formidable task for leaseholders. Fortunately, numerous resources are available to aid in this process. The Leasehold Advisory Service, a UK government-funded advice service, provides up-to-date information on changes to leasehold law and is a valuable source for leaseholders.

When in doubt, seek professional advice. Solicitors experienced in property law can provide clarity and support tailored to individual circumstances, potentially saving time, reducing risk, and offsetting costs in the long run.

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