Disrepair Counterclaims: Defending a Section 8 Possession 2026

You serve a Section 8 notice for three months of arrears, issue the claim, and turn up expecting a mandatory possession order. Then the tenant files a disrepair counterclaim, and the case you thought was arithmetic becomes a trial about the state of the property.

This is a common way for a possession claim to come off the rails, and it is not usually because the landlord is a bad landlord. It is because the paperwork does not exist to prove otherwise. Here is how counterclaims actually work and what defeats them.

Guidance, not legal advice. For a contested claim with a counterclaim, instruct a housing solicitor.

Why a disrepair counterclaim is so effective

The tenant is not usually arguing that they paid the rent. They are arguing that you breached your repairing obligation, and that they are owed damages for it. That obligation comes from section 11 of the Landlord and Tenant Act 1985 (structure, exterior, installations) and the Homes (Fitness for Human Habitation) Act 2018.

The damages are then set off against the arrears. That is the whole point, and it is where the danger lies:

• Ground 8 is mandatory but arithmetic. Post-RRA it needs at least 3 months' rent unpaid (monthly rent) at both the notice date and the hearing date. If the counterclaim knocks, say, £2,400 off the arrears, the balance can fall below that threshold, and your mandatory ground simply evaporates at the hearing.
• What you are left with are the discretionary grounds (10 and 11), where the judge decides whether possession is reasonable, and a landlord who ignored damp for eight months is not a sympathetic figure.
• Damages are commonly assessed as a percentage of rent for the period the defect persisted, plus something for distress and any damaged belongings. Over a long period it adds up quickly.

So the counterclaim does not have to win outright. It only has to shave enough off the arrears to break Ground 8.

What answers it is a dated record, kept long before the hearing. From £7.99 a month, LetCompliance logs every repair a tenant reports through the tenant portal with the date and photos, next to a rent ledger that shows month by month how the arrears built up, and on paid plans its Section 8 notice builder works those arrears into Form 3A. Get started

The other lever: retaliatory eviction

Separately, if the tenant complained about disrepair and you responded with a notice, expect an allegation of retaliatory eviction. The statutory protection against retaliatory eviction applied to Section 21 only, and there is no Section 8 equivalent. Disrepair still counts, through counterclaims and the court's view of reasonableness. And on a discretionary ground it looks bad in front of a judge: a documented complaint followed by a notice looks like retaliation unless your records show a genuine, independent reason and a genuine repair response.

What actually defeats a counterclaim

Not indignation, but a timeline. Adjudicators and judges decide these on records, and the landlords who win have four things:

1. A dated repair log. Every report (however it arrived: text, call, email), the date you responded, who you sent, what they found, when it was fixed. A log that shows a 48-hour response and a completed job kills most claims outright.

2. Access records. This is the most under-used defence. Some "unrepaired" defects are actually defects the tenant would not give access to fix. Missed appointments, refused entry and ignored messages, logged with dates, flip the story entirely. Under section 11(6) you have a right of entry on reasonable notice to inspect and repair; document every attempt.

3. Evidence of condition. The check-in inventory with dated photographs, plus any mid-tenancy inspection reports. If the property was sound at check-in and inspected since, the tenant is arguing against your photographs.

4. Prompt handling of the serious stuff. Damp and mould in particular: the direction of travel is fixed response windows (Awaab's Law in the social sector; the Renters' Rights Act has a power to extend it to private landlords, but no date is set). Treat a damp report as a clock that starts, not a nuisance email, and log it.

Before you get anywhere near court

• Deal with the disrepair first, then serve. A counterclaim is much weaker if the repair was done before the notice.
• Respond in writing to every complaint, even to say "attending Tuesday". Silence is what gets quoted back at you.
• Follow the Pre-Action Protocol for Housing Disrepair if you receive a letter of claim: respond within the timescales, disclose your records, and inspect. Ignoring it is costly on costs.
• Do not serve a notice as a reaction to a complaint. If you have a genuine ground, document why it exists independently of the complaint.

If a counterclaim has already landed

• Get the rent ledger and the repair log in front of a solicitor early. The strength of your position is usually visible within an hour.
• Expect the case to be relisted for a longer hearing; budget for delay.
• Consider whether a settlement (a repair schedule plus a payment plan on the reduced arrears) beats a contested trial, especially if your records are patchy.
• Remember the arrears clock keeps running: if arrears climb back above the Ground 8 threshold by the hearing date, the mandatory ground can be back in play.

A worked example

Marcus lets a two-bed flat at £1,150 a month. The tenant stops paying in January. By late April three payments have been missed, so the arrears stand at £3,450 and Ground 8 is comfortably met. Marcus serves the notice, waits the four weeks, and issues.

At the first hearing the tenant produces a counterclaim. She says she reported a leak under the kitchen sink in November and again in December, and that the kitchen has been unusable in part ever since. She has two text messages to prove the reports. Marcus remembers the leak. He sent a plumber "at some point in the new year" but has no record of when, and no invoice to hand.

The judge does not need to decide the case that day to cause Marcus a problem. If the tenant is awarded, say, £700 for five months of partial loss of use, the arrears drop to £2,750. That is under three months of rent. Ground 8 is gone, and Marcus is now arguing reasonableness on Grounds 10 and 11 against a tenant who reported a leak twice and waited.

Now run it again with records. Marcus produces the maintenance log: report received 14 November, plumber attended 16 November, parts ordered, job completed 22 November with a photograph and a £180 invoice. The counterclaim collapses to almost nothing. Same leak, same tenant, completely different hearing.

The difference was never the repair. It was the paperwork.

What the judge is actually weighing

On a discretionary ground the court is asking whether it is reasonable to make an order. In practice that turns into a handful of questions, and you can predict all of them:

How quickly did the landlord respond once told? Was the defect serious or cosmetic? Did the tenant give access? Has the landlord done this before, or is this a one-off? And is there anything that looks like retaliation, such as a notice served days after a complaint?

You will not win every one of those. You do not need to. You need enough of them to look like a landlord who runs the property properly and hit an arrears problem, rather than one who ignored a tenant and reached for a notice when the rent stopped.

One more practical point. If the disrepair claim is genuine, treat it as genuine. Fix it, document the fix, and deal with the arrears separately. Landlords lose far more by defending the indefensible than by conceding a £400 repair and keeping the possession case clean.

The mistakes that cost landlords the case

Four come up again and again.

Repairing without recording. The work gets done, the invoice goes in a drawer, and eighteen months later there is nothing to show a judge. A photograph and a dated note take a minute and are worth hundreds of pounds. In property maintenance software they sit on the repair with the contractor and the cost, next to the rent history for the tenancy.

Handling reports by phone. A call leaves no trace. Follow every conversation with a short message confirming what was agreed and when you are attending. That message is your evidence.

Letting access refusals slide. If the tenant blocks the plumber twice, write to them about it. An unanswered letter about access is one of the strongest documents you can hold.

Serving a notice in temper. The notice that follows a complaint by three days will be read as retaliation, whatever the real reason was. If you have proper grounds, take a fortnight, fix the repair, and serve from a clean position.

How LetCompliance fits

Everything above is a records problem, and records are what LetCompliance keeps. Tenants report repairs through the tenant portal, so each report arrives with a date. Repairs and contractors are logged against the property with photos, and the check-in inventory and mid-tenancy inspections hold dated photographs of condition. The rent ledger shows the arrears at the notice date and the hearing date, and on paid plans the Section 8 notice builder (Form 3A) works the arrears out for you. The counterclaim then meets a timeline rather than a shrug. See the guides on avoiding a disrepair claim and the Section 8 possession timeline.

Sources

• legislation.gov.uk: Landlord and Tenant Act 1985, s.11 and Homes (Fitness for Human Habitation) Act 2018
• Justice.gov.uk: Pre-Action Protocol for Housing Condition Claims