Damp Wall of a Home Unfit for Human Habitation

Homes (Fitness for Human Habitation) Act 2018 – A Review

On 20 March 2019, the Homes (Fitness for Human Habitation) Act 2018 (“the Act”) came into force. The Act amends the Landlord and Tenant Act 1985 by introducing new sections (in England only) 9A, B and C.

What is the purpose of the Act? 

The purpose of this legislation, as suggested by its title, is to ensure that rented accommodation meet certain property standards and are safe for human habitation. To achieve this, Section 9A implies a covenant into any tenancy granted on or after 20 March 2019 that the property is fit for human habilitation at the time the tenancy is granted and will remain so during its term. What is interesting is that the obligation on the landlord to ensure fitness for human habilitation applies not only to the particular dwelling occupied by a tenant but also to other parts of the building which the landlord has an interest in, including common parts and retained parts (such as the roof, stairwells, hallways, entrances, etc.).

What tenancies does the Act apply to?

The Act applies to both private and social rented properties as follows:

  1. Leases granted for a term of less than 7 years
  2. Secure, assured or introductory tenancies for a fixed term of 7 years or more
  3. Tenancies granted before, but renewed for a fixed term on or after 20 March 2019
  4. From the 20 March 2020 the Act will apply to all periodic tenancies. This is because the Act gives landlords of properties let before 20 March 2019 12 months from the date of commencement to comply.

What standard is considered “unfit” for human habilitation? 

It is ultimately for the court to decide whether a dwelling is or is not fit for human habilitation.

In arriving at its decision, the court will have regard to the condition of the property with respect to the following factors set out in section 10 of the Landlord and Tenant Act 1985:

  • the condition of the building
  • the stability of the building
  • any damp problems
  • the safety of the internal layout
  • the extent of natural lighting
  • the sufficiency of ventilation
  • the supply of hot and cold water
  • the drainage and sanitary facilities
  • the facilities for the preparation and cooking of food and for the disposal of wastewater.

In addition, a property may be deemed unfit as a result of any hazard that is described in the Housing Health and Safety Rating System which currently lists 29 hazards including asbestos, fire, pests and noise.

Rented accommodation will be unfit for human habilitation if the condition of the property is such that, in relation to any of the factors listed above, it is not reasonably suitable for occupation by humans.

Are there any exceptions? 

A landlord will not be held responsible if the property is unfit for habitation as a result of the tenants’ behaviour/treatment of the property and/or breach of the tenant covenants. Nor will they be held responsible for damage or destruction as a result of events beyond the Landlord’s control such as fire, storm, flooding, etc.

The landlord is not obliged to carry out works to the property if doing so would put him in breach of an enactment (such as planning permission) or require the consent of a third party (such as a superior landlord) which has been withheld. The same applies in respect of items that the tenant is entitled to remove from the dwelling.

What does the Act mean for tenants?

If a landlord fails to adequately maintain the property, a tenant can seek redress by taking their landlord to court for breach of contract (namely, breach of the implied covenant of fitness for human habilitation). If the court finds that the breach has occurred, it can award damages to compensate the tenant for the living situation and/or order specific performance for the landlord to rectify the issues identified. The amount of damages awarded to the tenant is at the discretion of the judge taking into account the severity of the unfitness, the length of the issues and the potential harm to the tenant.

It is important that a tenant notifies its landlord of any problems as soon as possible as the landlord is responsible from the moment he or she is made aware of the issue by the tenant (save for HMOs).

What does the Act mean for Landlords? 

For Landlords of joint tenancies, the tenant will need to notify the landlord of any property defect making the property unsuitable or unsafe. The landlord will have to address the issue in a reasonable amount of time. As to what is reasonable depends on the seriousness of the defect as well as the particular circumstances. For example, extreme damp and mould in a property housing a child with asthma are likely to be considered more urgent then say the same property housing a single, healthy young adult.

However, this does not mean that landlords can sit back and wait for the tenant’s call regarding any potential defect under the Act.

A landlord is considered immediately responsible for any defect in the common or retained parts of the building. Therefore, landlords must be vigilant and ensure the building and shared areas are well-maintained and safe for human use. For landlords letting out their property on a room by room basis (such as HMO), they will be held immediately responsible for a defect from the moment it occurs regardless of tenant notification, although they still have a reasonable time in which to fix it. The best way for Landlords to ensure they are compliant in these situations is to ensure they conduct regular inspections and keep detailed records.

Comment

The changes to the Landlord and Tenant Act 1985 will fundamentally change the law of disrepair. Until now, the 1985 Act only required landlords to keep rented properties in “repair”. Therefore, if a defect was not classed as a “disrepair” there was no obligation on the landlord to address this. For example, if a boiler was faulty then the landlord would need to repair this, however, if the property had no heating at all then technically speaking the landlord would not be obliged to install a boiler because there was no “disrepair” and doing so would amount to an improvement. The coming into effect of the Act now means that landlords will have to take active steps to improve properties to ensure that they meet standards “fit for habitation” instead of waiting for an existing feature to fall into disrepair before being held accountable.

The new legislation will be particularly welcomed by local authority tenants experiencing health and safety hazards in their homes. Whilst such tenants could and can complain to their landlord, Local Authorities cannot take enforcement action against themselves which left their tenants at a substantial disadvantage. The Homes (Fitness for Human Habitation) Act 2018 allows such tenants to bring claims against local authorities that fail to provide accommodation fit for human habitation.

Commentators believe the legislation opens up the avenue for a whole new set of “fitness claims” to be brought against Landlords, in addition to disrepair claims.  It is likely that the existing Housing Disrepair Pre-Action Protocol will be amended to include this head of claim.

Whatever the future holds, Black Antelope Law has specialist experience in acting for both tenants and landlords in housing disrepair and condition disputes and can assist you every step of the way.

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