The much awaited Homes (Fitness for Human Habitation) Act 2018 (the Act) came into force on 20 March 2019. Introduced into Parliament as a Private Member’s Bill by Karen Buck MP, the Bill quickly gained momentum after the tragic Grenfell fire disaster, receiving Royal Assent on 20 December 2018.
The Act amends existing provisions in relation to fitness for human habitation which had become meaningless given that the relevant legislation only applied to a house where the annual rent in London was £80 or less or £52 or less outside London.
The obligations imposed by the Act apply to:
- All new tenancies of a term of less than seven years granted on or after 20 March 2019 – this includes replacement tenancies; and
- All tenancies that begun as fixed term tenancies before the commencement date but become periodic after the commencement date.
- The Act will subsequently apply to all periodic tenancies in existence on the commencement date 12 months after that date, i.e. by 20 March 2020.
The provisions defining what is and what is not fit for human habitation are contained in the amended Section 10 of the Landlord and Tenant Act 1985.
These include whether the building is neglected and in a bad condition, where the building is unstable, serious damp problems, unsafe layout, insufficient natural light, insufficient ventilation, problems with the supply of water, problems with drainage or lavatories and difficulty in preparing and cooking food or washing up.
In addition, if the property is subject to any of the 29 hazards set out in Schedule 1 of the Housing Health and Safety (England) Regulations 2005, it will be deemed unfit for human habitation. These hazards include matters such as exposure to house dust mites, damp, mould or fungal growth, exposure to low or high temperatures, a lack of adequate space for living and sleeping, a lack of adequate lighting, exposure to noise and electrical hazards/exposure to electricity. A hazard is defined in section 2 of the Housing Act 2004 as any risk of harm to the health or safety of an actual occupier of a dwelling which arises from a deficiency in the dwelling or building in the vicinity.
The Act does, however, contain what are essentially defences:
- There is no liability where the issue has been caused by the behaviour of the tenant;
- there is no liability if the property is uninhabitable as a result of fire, storm, flood or other inevitable accident;
- there is no obligation to repair anything that the tenant is entitled to remove from the property;
- there is no obligation to carry out works or repairs which, if carried out, would put the landlord in breach of any other enactment; and
- there is no liability if a landlord requires consent from a superior landlord or third party but has been unsuccessful in obtaining this, having made reasonable endeavours to do so.
If a court finds that a landlord has in fact breached the Act, the landlord can be ordered to pay compensation to the tenant and/or to undertake works, including improvement works. There is currently no prescribed limit as to the amount of compensation payable by a landlord but, government guidance states that the factors that will be taken into account in this respect include the perceived harm that has been inflicted on the tenant, the longevity of the issue and the severity of the unfitness in the dwelling. A landlord may also be ordered to pay a tenant’s legal costs.
The landlord is considered to be responsible for the hazard from when they are made aware of it by the tenant. However, any hazard located in common parts of a block of flats or in an HMO will make the landlord immediately liable. The landlord will then have a reasonable period of time in order to deal with the hazard and what is reasonable will depend on the circumstances. Once the landlord has been made aware of the hazard, and is not actively attempting to remedy it, the tenant will be able to take the landlord to court. It is then for the court to decide whether the landlord has dealt with the hazard in a reasonable time.
The Act provides for an implied covenant by the tenant to give access to a landlord or a contractor during reasonable hours of the day and on 24 hours’ written notice. In an emergency, a landlord may be entitled to enter the property on shorter notice. As with any access issues, a landlord should keep a record of all attempts they have made in order to contact the tenant should further court action in this respect be necessary.
Landlords should therefore ensure that as of 20 March 2019, any properties that they let under a new tenancy fully comply with the Act and that no relevant defects are present.
Thereafter, during the next 12 months, landlords should concentrate on ensuring that those premises which were let prior to 20 March 2019 are made fully compliant with the Act. Failure to do so may risk an influx of cases on and after 20 March 2020.
Finally, it will be prudent to review policies and procedures in order to ensure that the cases that will no doubt be issued by tenants’ solicitors who already act in disrepair cases, are managed smoothly and efficiently.
The Government has issued guidance for landlords on the Act which gives a straightforward overview of the new provisions: https://www.gov.uk/government/publications/homes-fitness-for-human-habitation-act-2018.
