15 February, 2019
The Homes (Fitness for Human Habitation) Act 2018 ("the Act") comes into force on 20th March 2019. The Act will enable tenants to pursue claims relating to substandard housing conditions. Currently, there are no provisions requiring landlords to ensure that their properties are fit for human habitation. The Landlord and Tenant Act 1985 only requires landlords to keep properties "in repair". Here is a brief overview of the Act and the changes that it will make to the legislative framework.
The new Act amends sections 8 and 10 of the Landlord and Tenant Act 1985 as well as inserting new sections 9A, 9B and 9C.
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 where the tenancy has become periodic before 20 March 2019, the Act will apply to the periodic tenancy 12 months from commencement.
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. 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.
When determining whether a house is unfit for human habitation, regard shall be had to the following factors contained in the amended section 10:
• freedom from damp,
• internal arrangement,
• natural lighting,
• water supply,
• drainage and sanitary conveniences,
• facilities for preparation and cooking of food and for the disposal of waste water;
• any prescribed hazard.
The house or dwelling shall be regarded as unfit for human habitation if, and only if, it is so far defective 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. 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 could include lack of heating, excessive cold, overcrowding, lighting, fire safety or noise.
The new Act is likely to result in an increase in claims against housing associations and social landlords. The key issue will be whether the dwelling is "reasonably" suitable for occupation. It will be interesting the see how the courts will interpret this issue. Claims that currently fall short of the section 11 Landlord and Tenant disrepair criteria, for instance, claims relating to ventilation and condensation resulting from the construction of the property, may succeed under the new Act. Going forward, we anticipate detailed arguments on these issues and expert reports about the cause of damp.
Housing associations and social landlords should consider assessing their housing stock now to identify any potential risks prior to the implementation of the Act.
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