Q I signed a tenancy agreement with promises from the landlord that certain repairs would be carried out. These have not been done and recent wet weather has resulted in water entering the property, which continues to be uninhabitable. I have not been able to move into the property for two months. Can the tenancy be cancelled?

A Assured shorthold tenancies include a host of express and implied obligations for the landlord to carry out repairs. The written agreement will almost always include specific repairing provisions and will require the landlord to give the tenant “quiet enjoyment” of the property. There are implied obligations under section 11 of the Landlord and Tenant Act 1985 and the Defective Premises Act 1972. Furthermore, a property let as a dwelling must at least be inhabitable at the start of the tenancy. If a landlord breaches any of these obligations, the tenant has a number of remedies. Usually it will be to claim compensation and (where necessary) a court order for the landlord to carry out works. Compensation may include “special” damages for ruined possessions, extra heating costs and rental of alternative accommodation. The tenant can also claim “general” damages for the inconvenience and anxiety of living in unpleasant surroundings. If the property becomes totally uninhabitable, compensation may even exceed the rent payable to the landlord. If there is a genuine claim for compensation, the tenant can deduct or “set off” these damages from the rent. In really serious cases the tenant can effectively tear up the tenancy agreement. If either party to a contract breaches a fundamental term of the agreement, that breach is categorised as a “repudiatory” breach. The classic example of a repudiatory breach in landlord and tenant law is where the property is in such bad repair that the tenant cannot live there. The tenant does not have to end the tenancy - he or she can choose or “elect” whether to continue with the agreement or not.

If the damp in your case is so bad that you cannot move in after two months, there is little doubt that this is a repudiatory breach. You can elect to end the tenancy by handing back the keys and informing the landlord. If you paid a deposit, you can claim that back and seek compensation for any damage you have suffered as a result of the landlord's default.

The writer is a barrister at Tanfield Chambers. E-mail your questions to: brief.encounter@thetimes.co.uk

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