A disrepair counterclaim can defeat a mandatory possession claim without winning the whole case. Since 1 May 2026, for private tenancies in England, Ground 8 generally needs at least three months’ rent arrears at the date of the notice and again at the hearing, with four weeks’ notice. If a counterclaim reduces the net arrears below that line, the mandatory ground fails and the judge moves to discretion if the landlord also relies on Grounds 10 or 11. That is the single most useful point for tenants and the single biggest risk for landlords. Section 21 has gone in the private rented sector, so possession now runs through section 8 grounds, and condition issues matter more than they used to.
Most possession cases that go wrong for landlords go wrong on the paperwork, not the law.
Why the counterclaim bites
The court can set damages for disrepair off against rent owed. The leading case is Baygreen Properties v Gil [2002] EWCA Civ 1340, which confirms that equitable set-off can reduce the arrears figure for mandatory rent arrears possession. Ground 10 and Ground 11 remain discretionary, so the court asks whether possession is reasonable, and a landlord who ignored repairs rarely persuades a judge easily.
| Position | Effect on the possession claim |
|---|---|
| Net arrears stay above three months | Ground 8 survives and possession is mandatory |
| Counterclaim brings arrears below three months | Ground 8 fails, leaving discretionary grounds if pleaded |
| Landlord relies on Ground 10 or 11 | Court decides whether possession is reasonable |
| Tenant pays down arrears before the hearing | Ground 8 may fail on timing alone |
| Landlord served notice too early | Notice may be defective and the claim may be dismissed |
A scenario that shows the swing
A landlord in Tottenham served a Ground 8 notice on a tenant owing £4,300 on a rent of £1,250 a month. The tenant had reported mould in two rooms over fourteen months, always by text. She issued a counterclaim supported by a surveyor’s report, valued at roughly 30% of rent for the affected period.
The set-off took the net arrears to about £1,100, well below three months. The landlord lost the mandatory ground, withdrew, and agreed to carry out works in exchange for a payment plan. That is not an unusual outcome. A short run of dated texts did more work than three months of argument.
Tactics for tenants
Put every complaint in writing and keep screenshots. Photograph defects with dates, keep a diary of the impact, and get an expert to inspect before the hearing if the scale of the claim justifies it. Where a housing conditions claim is being brought, the claim should follow the Pre-Action Protocol for Housing Conditions Claims so far as possible, and section 11 of the Landlord and Tenant Act 1985 and the fitness for human habitation provisions give you the legal basis. Do not stop paying rent altogether. A counterclaim is a set-off, not permission to withhold.
If you need advice on valuing the claim, our housing disrepair solicitors in London can assess the period and the figure. Our note on what compensation tenants can recover explains how courts approach it.
Tactics for landlords
Repair promptly and keep the records. A landlord who inspected, instructed a contractor and kept the correspondence has a far shorter hearing. Offer access dates in writing, because a tenant who refuses reasonable access for repairs weakens their own counterclaim.
Check the arrears figure at every stage. A notice served on two and a half months’ arrears is defective for Ground 8 under the post-1 May 2026 private rented sector rules, and the court cannot cure that by treating later arrears as enough. Our guide on documenting rent arrears properly covers what the rent account should show. Where the claim goes ahead, our landlord and tenant eviction services handle the notice and the proceedings.
Plead Grounds 10 and 11 alongside Ground 8, because that gives you a fallback if the set-off bites. The government explains the notice and grounds in its guidance on evicting tenants in England.
Evidence wins the day
Both sides are judged on records, and our guide on building an evidence file that stands up in court explains what that file looks like. Expert evidence on disrepair can be proportionate where the defects and valuation are disputed, and the court will allocate the claim by value and complexity, which our explainer on how civil claims are allocated between tracks sets out. Fees and costs shape settlement, so our note on recent court and tribunal fee changes is worth reading.
If the tenancy had a guarantor, the guarantee can be affected by changes to the tenancy or possession process, so our post on when a tenancy guarantee can be challenged and our plain English timeline of the Renters’ Rights reforms are good companions. Where the building is mixed use, our commercial lease solicitors in London can review repairing obligations, and where the landlord has died our probate solicitors in London can advise on who defends the claim.
Frequently asked questions
Can a disrepair counterclaim stop an eviction?
It can defeat Ground 8 if it brings the net arrears below the mandatory threshold. Discretionary grounds then depend on whether the judge thinks possession is reasonable.
Can a tenant stop paying rent because of disrepair?
No. Stopping payment puts the tenancy at risk. Pay what you can and raise the counterclaim formally.
Does a landlord have to repair before the hearing?
There is no strict bar, but fixing the problem early reduces the counterclaim and improves the landlord’s position on reasonableness.
What if the tenant refuses access for repairs?
Record every access request in writing. Unreasonable refusal can weaken the counterclaim and strengthen a landlord’s case.
Get your position assessed before the hearing
Possession cases turn on the arrears figure and the repair history, and both can be checked quickly. Send us the notice, the rent account and any complaints, and we will tell you where you stand. Speak to our solicitors in North London on 020 3581 9293 or email info@atalawsolicitors.com.