17 January, 2019
The Homes (Fitness for Human Habitation) Act 2018 will come into force on 20 March 2019 and have the effect of amending sections 8 and 10 of the Landlord and Tenant Act 1985 as well as inserting new sections 9A, 9B and 9C.
Here is a brief overview of the Act and the changes that it will make to the legislative framework.
The new section 9A of the Landlord and Tenant Act 1985 implies a covenant by landlords into residential tenancy agreements that the dwelling:
(a) is fit for human habitation at the time the tenancy is granted or otherwise created or, if later, at the beginning of the term of the tenancy, and
(b) will remain fit for human habitation during the term of the tenancy.
This implied covenant cannot be avoided or contracted out of by the landlord, nor can any contractual penalty be levied on the tenant for relying on the covenant.
Section 9B provides that the changes to be introduced by section 9A will apply to all tenancies of less than seven years granted after 20 March 2019 and let either wholly or mainly for human habitation. It will also apply to fixed term tenancies that become periodic after 20 March 2019 and for those tenancies which have or will become periodic before that date, the Act will apply from 20 March 2020.
Section 9C applies the changes introduced by section 9A to certain dwellings occupied by agricultural workers and will likely be of no relevance to Registered Providers.
The obligation to ensure a dwelling is fit for human habitation extends to all parts of the building in which the landlord has an estate or interest. So, where a landlord owns a block of flats or a HMO, the tenant has a cause of action where unfitness arises from the common parts, or the retained parts (e.g., the outside walls, the windows, the roof).
There are certain exceptions to the obligation under sections 9A(2) and 9A(3), such as unfitness caused by a tenant's failure to act in a tenant-like manner or a tenant's breach of covenant.
Determining whether a house is unfit for human habitation involves consideration of the matters in section 10 of the Landlord and Tenant Act 1985 which has been amended by the 2018 Act to add "in relation to a dwelling in England, any prescribed hazard". It remains the case that a property is regarded as unfit only if "it is so far defective in one or more of those matters that it is not reasonably suitable for occupation in that condition".
"Prescribed hazard" means any matter or circumstance amounting to a hazard for the time being prescribed in regulations made under section 2 of the Housing Act 2004, presumably referring to the list of 29 hazards in schedule 1 of The Housing Health and Safety Rating System (England) Regulations 2005. In deciding whether a property is unfit, regard shall also be had to whether there is a risk of harm to the health or safety of the occupiers.
Some examples of defects which could render a dwelling unfit (so long as it is so defective that the dwelling is not reasonably suitable for occupation) from 20 March 2019 are entry by intruders, excess cold/heat, crowding and space, noise, and domestic and personal hygiene.
It will be interesting the see the extent to which the courts' will interpret the question of whether a hazard is so far defective that the dwelling is not reasonably suitable for occupation. Leading legal commentators have noted that whilst there is no requirement for landlords to be on notice of defects within the Act, they expect that the common law requirements will apply as with section 11 of the Landlord and Tenant Act 1985 (i.e. liability will only arise once the landlord has had notice of the unfitness and reasonable time to rectify the defect).
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