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Counterclaim

Set-off

Set-Off and CounterClaim for disrepair

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Counterclaim

Set-Off

What does Set-off and Counterclaim for disrepair mean and what are the potential effects?

Explanation

Set-off and CounterClaim may arise if the tenant has evidence to prove that there home he is renting from the Landlord contains aspects of disrepair, and such aspects of disrepair mean that compensation that would be paid by the Landlord can be countered against the amount of rent arrears owed by the tenant.

Counterclaim

Set-off

When is the challenge of set-off and counterclaim engaged?

When all the below requirements are met

1

Possession is being claimed for rent arrears

The claim for possession is due to rent arrears, and there are not other Grounds relied upon in the claim for possession

2

The property is in disrepair

An aspect of property must be in disrepair.

3

The landlord has been previously notified of such disrepair

The landlord has been previously notified of such disrepair at a time reasonably earlier than the hearing.

4

The disrepair is significant and any compensation could be significant and proximate to rent arrears being claimed

Any potential compensation for the disrepair should be close in amount to the amount of rent arrears being claimed

5

There is compelling evidence to prove the disrepair and such evidence is available at the possession hearing

Evidence must be clear, documented, time stamped, organised and well-presented

6

There is compelling evidence to prove that the tenant has complained of such disrepair to the Landlord

Evidence of such notification to the landlord must be time stamped, clear and well-presented

Counterclaim

Set-off

What will the court consider in determining whether there is sufficient disrepair to amount to a potential set-off (counterclaim) against the rent arrears?

All the following requirements must be met in order to determine that the claim for disrepair should be engaged int he current possession hearing.

1 – Whether there is reasonable evidence to suggest there has been disrepair; and


There must be compelling evidence to suggest disrepair.

2- Whether the landlord has been notified of such disrepair; and

There must be compelling evidence of prior notification to the landlord.

3 – Whether any compensation for such a claim disrepair could be close in amount to the amount of rent arrears owed by tenant.

The potential compensation must be proximate to the amount of rent arrears being claimed by the landlord.

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The Different Outcomes that may arise

Below are different outcomes that may arise as a result of different determinations by the Court

Potential outcome 1: The Court considers all above requirements are met and the Landlord admits the disrepair claimed

If the landlord admits the disrepair then the court will adjourn the possession proceedings and schedule a hearing to determine the costs of the compensation and make a final determination regarding the compensation for dispreapr, and for the possession claim

Potential outcome 2: The Court considers all above requirements are met and the Landlord denies the the disrepair claimed by the tenant

If the landlord does not admit disrepair or admits only a very minor amount of disrepair that is not sufficient to be similar in compensation costs to the amount of arrears, then the court will halt the proceedings to give an opportunity for the tenant to properly file the counterclaim for disrepair and to give the landlord an opportunity to provide a defence. Following that, the court is likely to set a hearing for the trial of the disreepair issue and then make a determination for possession.

Potential outcome 3: The Court considers that at least on of the above requirement are not met

Then the court will make a determination for possession during the hearing and will not hear any arguments relating to disrepair in response to the possession after such considerations being made. However, the tenant will alwasy have an opportunity to make a independent claim for disrepair against the Landlord after the hearing, however such claim will not affect the possession claim made or the order made at the hearing.