Disrepair as a defence and counterclaim in possession proceedings: a professional guide

When a landlord brings possession proceedings against a tenant who is also a claimant in a disrepair action, or who has an arguable disrepair claim, the two sets of proceedings interact in ways that require careful management. This article examines the procedural and tactical considerations for practitioners acting for tenant defendants.

Key facts

• Ministry of Justice figures show landlords made 22,733 possession claims in the county courts of England and Wales in January to March 2026, with 6,888 repossessions carried out by county court bailiffs. Mortgage and landlord possession statistics, GOV.UK
• In the same quarter there were 16,848 possession orders and 10,172 warrants, each down on the same period a year earlier. Mortgage and landlord possession statistics, GOV.UK

The basic principle

A tenant facing possession proceedings can raise housing disrepair as both a defence and a counterclaim. The disrepair counterclaim seeks damages; the disrepair defence may go to discretion on the possession claim (where the ground is discretionary) or may operate through a set-off of damages against the rent arrears forming the ground for possession.

The procedural vehicle is CPR Part 20, the tenant brings the counterclaim as part of the defence, and the combined proceedings are managed together.

Defence to Ground 8 possession

Ground 8 is mandatory: if the landlord proves two months' or eight weeks' arrears at the date of notice and at the hearing, the court must grant possession. There is no judicial discretion once the ground is made out.

The disrepair defence does not directly defeat Ground 8. However, it can operate as follows:

Set-off: where the tenant's disrepair damages equal or exceed the rent arrears, those damages can be set off against the arrears. If the set-off reduces the net arrears below the Ground 8 threshold (two months or eight weeks), the ground is not made out and the court cannot grant possession on that ground.

Example: arrears of £2,800 (two months). Disrepair claim assessed at £4,000. Set-off of £2,800 reduces arrears to nil. Ground 8 fails.

The set-off must be an equitable set-off, the damages must arise from the same transaction or be closely connected to the rent obligation. Disrepair in the same letting clearly satisfies this.

Procedural point: the timing is critical. The set-off must reduce arrears below the threshold at the date of the hearing, not just at the date of notice. So the tenant needs to establish sufficient quantum at trial.

Defence to discretionary grounds

For discretionary grounds (Ground 10, Ground 11, Ground 14), the court has discretion whether to grant possession even where the ground is made out. Relevant factors include:

• The history of the tenancy
• The tenant's conduct and efforts to pay
• The landlord's conduct, including failure to repair
• The effect on the tenant and their household of a possession order

Disrepair by the landlord can be directly relevant to the court's exercise of discretion. A landlord seeking possession for rent arrears while the property is in serious disrepair is less likely to obtain a possession order quickly, particularly where the arrears arose partly because the tenant had to divert funds to address conditions the landlord should have remedied.

Counterclaim and stay of possession order

Where the tenant's disrepair counterclaim is substantial and the net position (after set-off) leaves the landlord in a small net credit position, the tenant can apply for:

• A stay of any possession order pending determination of the counterclaim
• A suspension of the possession order on terms, for example, continued occupation while paying current rent and paying off remaining arrears by instalments

Courts have broad powers to suspend possession orders in these circumstances and will often do so where the tenant has arguable counterclaims.

Practical procedure

1. Identify the disrepair claim at the earliest opportunity: take instructions on disrepair as soon as possession proceedings are served, the disrepair history often reduces or eliminates the net arrears position.

2. Quantify provisionally before the first hearing: the court will want to understand the scope of the counterclaim. Even a rough calculation of the amenity reduction percentage applied to the rent for the defect period gives the court a working figure.

3. File the Defence and Counterclaim: the Defence denies the net arrears (applying the set-off); the Counterclaim pleads the disrepair. Both are filed together.

4. Apply for transfer or re-listing if possession is on the fast track: possession claims are often listed quickly (8 weeks after issue). If the disrepair counterclaim has not been fully pleaded or valued, apply for an adjournment or a two-hearing structure (interim possession hearing + substantive hearing on the counterclaim).

5. Seek expert evidence directions: the counterclaim will need a surveyor's report. Request directions for this at the first hearing.

6. Consider the balance of convenience for any injunction: if repairs are ongoing and urgent, a without-notice injunction may be needed.

The interplay with Legal Aid

Legal aid is not generally available for disrepair counterclaims where the primary relief is compensation. However, where the disrepair creates a serious health or safety risk, emergency legal aid may cover an injunction application. The defence to possession proceedings may attract legal aid independently.

Costs considerations

Where a counterclaim succeeds and the net position leaves the landlord with a nil or negative balance, the costs consequences for the landlord can be significant, they may be the effective loser even on the possession application. Courts can make creative costs orders in these circumstances.

Common mistakes

• Failing to plead set-off explicitly: if the defence does not plead set-off, the court may not apply it at the hearing.
• Delaying the counterclaim: a counterclaim raised for the first time at the possession hearing may be adjourned, leaving the tenant exposed to a possession order in the interim.
• Understating the quantum: if the damages calculation does not demonstrate sufficient quantum to reduce arrears below the threshold, the set-off argument fails. Work the numbers carefully.
• Ignoring the notice period: disrepair damages only run from when the landlord had notice. If notice was not given until recently, the quantum may not be sufficient to cover the arrears.

When should I contact Support for Tenants?

We act for tenants in housing disrepair claims. Where a client is also facing possession proceedings, call us to discuss how we can assist with the disrepair element.

Call us on 0800 030 4669. No upfront cost. You only pay if you win, and the fee comes out of the compensation, not your pocket. If you don't win, you pay nothing.

Sources

• Housing Act 1988 (legislation.gov.uk)
• Landlord and Tenant Act 1985, Section 11 (legislation.gov.uk)
• Pre-Action Protocol for Housing Conditions Claims, England (justice.gov.uk)

Related articles

• Disrepair quantum assessment, a professional guide