The Homes (Fitness for Human Habitation) Act 2018 (‘the Act’) came into force on 20 March 2019. The Act does not create any new obligations for landlords, but it does give social and private tenants a right of redress for breaches through the civil Courts, which can include a currently unspecified compensation award. It is vital that landlords are aware of their potential exposure to such claims.

Where Does the Act Apply?

• Social and private sectors
• Tenancies shorter than 7 years that are granted on or after 20 March 2019
• Tenancies longer than 7 years that are granted on or after 20 March 2019 that can be terminated by the landlord within 7 years
• Tenancies that are renewed on or after 20 March 2019
• All periodic tenancies after 20 March 2020

What is ‘Fitness for Human Habitation’?

The requirement that a property must be fit for human habitation is not new and has always been required by section 10 of the Landlord and Tenant Act 1985. In deciding whether a claim from a tenant has merit, the Courts will determine whether a property is so far defective in one or more of the following matters that it is not reasonably suitable for occupation in that condition:-

• Repair
• Stability
• Freedom from damp
• Internal arrangement
• Natural lighting
• Ventilation
• Water supply
• Drainage and sanitary conveniences
• Facilities for preparation and cooking of food and for the disposal of waste water

Landlords should therefore make sure that the property is free of hazards which are so serious that it is not reasonably suitable for occupation in that condition.

Remedies Available to Tenants

Most landlords will already comply with the long-standing requirement that the property they are renting out is fit for habitation. A tenant can now challenge this and bring a claim for breach of contract, seeking an Order from the Court requiring the landlord to rectify the problem. Tenants can also seek compensation for damage caused to them by being subjected to a property in such a condition.

Currently the amount of compensation that can be awarded is not specified or limited, and so there is potential for tenants to test out this new legislation with some large claims. It should be remembered that the tenant’s legal costs may also be awarded against a landlord found to be at fault.

Defending a Claim

A landlord will be able to argue that they should not be required to remedy unfitness in the following circumstances:-

• When the hazard or unfitness is caused by ‘Acts of God’ that are beyond the landlord’s control, for example floods, fire and exceptional weather.
• When the hazard or problem has been caused by the tenant or something they have brought onto the property themselves.
• When the landlord has not been able to obtain consent for rectification and can give evidence that reasonable efforts have been made to do so. For example, obtaining planning permission or permission from freeholders.
• The Act does not cover people who have ‘licences to occupy’ instead of tenancy agreements, for example lodgers.

Avoiding a Claim

The best defence to any such claims is to ensure that all property is fit for habitation and maintained to a good standard.

The landlord is responsible from the time that they are made aware of the hazard by the tenant. In respect of hazards in common areas of a group of let properties, the landlord is immediately liable as soon as the hazard occurs.

The landlord has a reasonable amount of time to deal with the hazard, and what is a ‘reasonable amount of time’ depends upon the circumstances. Active steps should be taken by the landlord and all correspondence on the matter should be documented in case the landlord needs to demonstrate to the Court.

The landlord should give at least 24 hours’ written notice to the tenants that they intend to rectify a problem, and the visit should be made within ‘reasonable’ hours. In an emergency the landlord may be
entitled to enter the property on shorter notice. If a tenant will not give access, landlords should seek legal advice and keep a record of all attempts they have made to contact the tenant.

Gareth Brazier specialises in Civil Litigation and Dispute Resolution, and can assist where such problems have arisen. He can be contacted at gpb@beechamfisher.co.uk or on 01702 348 384.

To minimise the risk of such problems arising, Frances White can offer assistance to landlords and tenants in the negotiation of their leases. She can be contacted at fw@beechamfisher.co.uk or on 01702 348 384.

Nothing in this publication should be regarded by any person as advice or in the nature of advice: it should not be relied on; and the author assumes no liability whatsoever to any person.