The Homes (Fitness for Human Habitation) Act 2018 Act came into force on the 20th March 2019 and from the 20th March 2020 applies to all tenancies in England & Wales. The Homes (Fitness for Habitation) Act 2018 Act inserts Section 8, 9A, 9B, 9C and 10 into the Landlord & Tenant Act 1985.
The Act will entitle a tenant to seek compensation and an order for works against a landlord who fails to comply with their duty to ensure that the property is fit for human habitation. The Act will also apply to all parts of the building including the common/retained parts.
9A Fitness for human habitation of dwellings in England
(1) In a lease to which this section applies of a dwelling in England (see section 9B), there is implied a covenant by the lessor that the dwelling—
(a) is fit for human habitation at the time the lease is granted or otherwise created or, if later, at the beginning of the term of the lease, and
(b) will remain fit for human habitation during the term of the lease.
What factors will the Court take into account when considering if a property is fit for human habitation?
Section 10 of the Landlord and Tenant Act 1985 specifies nine fitness standards which indicate that a property is not fit for human habitation:
The building has been neglected and is in a bad condition
The building is unstable
There is a serious problem with damp
It has an unsafe layout
There is not enough natural light
There is not enough ventilation
There is a problem with the supply of hot and cold water
There are problems with the drainage or the lavatories
It is difficult to prepare and cook food or wash up
Any prescribed hazard
The Homes (Fitness for Human Habitation) Act 2018 has inserted ‘prescribed hazard’ into s10, Landlord & Tenant Act 1985. A prescribed hazard refers to the 29 hazards specified in the Housing Health and Safety (England) Regulations 2005 (HHSRS).
Definition of Hazard: A Hazard is defined in Section 2 (1) Housing Act 2004 as:
Any risk of harm to the health or safety of an actual or potential occupier of a dwelling or HMO
Which arises from a deficiency in the dwelling or HMO or in any building or land in the vicinity
Whether the deficiency arises as a result of the construction of any building, an absence or maintenance of repair, or otherwise
The most common hazards which a landlord should expect a tenant to report will include:
Condensation dampness; potentially caused by no ventilation within the property, lack of insulation to external bridges, cold bridging
Inadequate heating and loss of heating and hot water e.g. the central heating system works but the radiators are small and do not adequately heat up large rooms
Fire hazards and fire safety risks; the property must meet fire safety regulations
Lack of extractor fans; they may be a duty to install one if one is not installed
Pest infestation; pests may be entering the property through gaps and holes caused by structural disrepair
The standard to apply when determining if a property is fit for human habitation is whether the property is subject to hazards which are so serious that the dwelling is not reasonably suitable for occupation.
The Court will take the following factors into account when deciding whether a property is deemed reasonably suitable for occupation;
The defects will have to be significantly serious
Does the hazard effect the overall condition of the property?
Is the condition affecting use of bathroom/kitchen facilities?
Is the condition having an adverse effect on the tenant’s health
Is the hazard causing actual risk to health and safety?
A landlord will be able to rely on the following defences to a claim as specified in Section 9A (2)-(3) The Homes (Fitness for Human Habitation Act) 2018 which states:
The landlord is not responsible for unfitness caused by the tenant’s failure to behave in a tenant-like manner (s.9A(2)(a)), or that results from the tenant’s breach of covenant (s.9A(3)(a)).
The landlord is not obligated to rebuild or reinstate the dwelling in the case of destruction or damage by fire, storm, flood or other inevitable accident.
The landlord is not obligated to maintain or repair anything the tenant is entitled to remove from the dwelling.
The landlord is not obligated to carry out works or repairs which, if carried out, would put the landlord in breach of any obligation imposed by any enactment (whenever passed or made) – this would include things like breaching planning permission, or listed building consent, or conservation area requirements.
Where the needed works require the consent of a third party (e.g., a superior landlord or freeholder, a neighbouring leaseholder or owner, or a council) and the landlord has made reasonable endeavours to get that consent, but it has not been given
If a tenant refuses to provide access for a landlord to view the condition of the property, Section 9(A) (7)- (8) Landlord & Tenant Act 1985 contains an implied covenant requiring the tenant to provide the landlord with access at a reasonable time of the day upon being provided with 24 hours notice.
Consequences of breach
If the landlord fails to comply with their duty to ensure that the property is fit for human habitation and a tenant commences Court action, the Court can order;
- Order for specific performance requiring the landlord to undertake works within a set period
- Damages (Compensation)