The Homes (Fitness for Human Habitation Act) 2018 already applies to all tenancies made after 20 March 2019. From 20 March 2020 it will apply to all existing tenancies with terms of less than seven years. The Act considerably changes landlord’s obligations to tenants. Currently, under s11 Landlord & Tenant Act 1985, landlords are obliged to fix certain parts of a building which deteriorate from their original state (the structure and exterior and services for gas, electricity, water and sanitary services). The Fitness Act works differently. The obligation is for the landlord to put and keep the property in a fit state for human habitation, having regard to the following matters:
• 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;
• In relation to a dwelling in England, any prescribed hazard;
This widens the kinds of issues that landlords will have to concern themselves with, and means that landlords will be obliged to undertake improvements instead of just repairs. The most common kinds of improvements will probably be around condensation and related mould growth: to install extractor fans, dry-line walls and install vents. However the inclusion in England of a defect that is a ‘prescribed hazard’, meaning any matter amounting to a hazard under the HHSRS regulations, brings all kinds of weird and wonderful issues into play, many of which most of us will have to google to understand. These are currently, in full (with my explanations in brackets):
- Facilities for the disposal of wastewater
- Asbestos and manufactured mineral fibres
- Biocides (poisonous substances such as pesticides)
- Carbon monoxide and fuel combustion product
- Uncombusted fuel gas
- Volatile organic compounds (another harmful substance, often found in paint)
- Electrical hazards
- Excess cold (so landlords will be obliged to put in adequate heating or insulation, rather than just maintaining existing systems)
- Excess heat
- Crowding and space
- Entry by intruders
- Lighting (including natural) (so having no natural lighting could be an issue)
- Noise (so landlords could be obliged to install sound insulation)
- Domestic hygiene, pests and refuse
- Food safety
- Personal hygiene, sanitation and drainage
- Water supply for domestic purposes
- Falls associated with baths etc.
- Falls on the level
- Falls associated with stairs and steps
- Falls between levels
- Hot surfaces and materials
- Collision and entrapment (such as a sash window likely to slam and trap fingers)
- Position and operability of amenities (for example a gas ring located millimeters from the wall so that it is not safe to light it)
- Structural collapse and falling elements
Thankfully, even those of us who spend our working lives looking at defects in homes have never seen some of these hazards (risk of explosion for example) and others are very rare. One of the above defects would have to be present and significantly serious to render the property unfit for human habitation (which does not mean unliveable, but rather is likely to mean causing discomfort or an actual risk to health and safety).
As well as landlords having to educate themselves and their staff about what their obligations now are, the forthcoming wide application of the Fitness Act should be a trigger for a review of legal documents. It is not necessary to change new tenancy agreements, because the Fitness Act will imply obligations into all tenancies anyway, but it may be helpful to do so for clarity. Agreements between landlords and their managing agents or contractors may cause more problems. Many set out which s11 repair issues the landlord will be responsible for and which the agent will be responsible for, or simply that the agent is responsible for organising repairs. The Landlord will have obligations under the Fitness Act which are not confined to repairs and could include improvements. These will not be covered by the agency agreements.
Other management agreements will repeat the wording in s11 and say for example that the agent is responsible for organising repairs to the structure, exterior and services. If there is a food safety issue, such as having no sink in the kitchen (because there never was one, rather than because it is broken) the agent will not be obliged to do anything about this, but the landlord will still be liable to the tenant.
Some landlords delegate responsibility for repairs to managing agents, paid for by a service charge. If this is the case the tenancy agreements will have to be considered to see if they include charges beyond ‘repair’ and for ‘improvements’. In some cases tenant consultation is required to amend a service charge.
None of these issues affects the landlord’s obligations to tenants to keep their home fit for human habitation. However, arguments between landlords and agents will delay works being done. If a tenant sues a landlord under the Fitness Act then the landlord will have no recourse to recover losses from their agent if the agent was never obliged to deal with Fitness type defects.