Housing associations urged to fight Environmental Protection Act claims

Housing associations are being urged to take a stand against the rising number of prosecutions being brought by tenants under the Environmental Protection Act, following a successful legal case.

Devonshires has succeeded in having a prosecution dismissed on behalf of Estuary Housing Association and also obtained a rare wasted costs order against the complainant’s solicitor.

The tenant started proceedings under the Environmental Protection Act, complaining that the condition of her house was prejudicial to her health and a statutory nuisance due to dampness. The tenant’s expert report was based on a single inspection, which didn’t account for the landlord’s repair works carried out a month later.

However, an inspection by the landlord’s expert revealed that there was no dampness at trial and based on its repair records, the earlier dampness was likely to have been resolved the day before proceedings were issued. Despite this, the tenant pursued the case, which continued to trial where it was dismissed.

Donna McCarthy, partner at Devonshires and who acted for Estuary Housing Association said: “Over the last 18 months, we have seen a substantial rise in these claims against housing associations with some tenants’ legal representatives seeing these as an opportunity to make money. Even if there is a lack of evidence, landlords will usually settle out of court as they see the legal process as too risky in terms of costs and time.

“However in this instance, Estuary Housing Association decided to make a stand and take the case to trial. The prosecution was abandoned and the tenant faced a bill for her own legal costs in the region of £22,000. In an extremely rare move, the Judge also ordered the solicitor to pay a contribution to the landlord’s legal costs. This was because the tenant’s solicitor was deemed responsible for the unreasonable continuation of the proceedings.

“This positive outcome should provide comfort to housing associations which have been unreasonably targeted with similar claims. It proves that the courts will come down hard on claims that are not substantiated and are without clear evidence. Rather than backing down, landlords should have the confidence to pursue to trial – success in the courts will not only help protect their reputations, but also means that they will be unlikely to be targeted again.”

Ian Martin, Executive Director of Operations at Estuary Housing Association, added: “At Estuary we are always keen to defend a claim which clearly has no merit in law or in fact.  We are grateful to our Solicitors and Counsel for their advice and for supporting the Association through this complex case.”

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