Very simply, the Homes (Fitness for Human Habitation) Act 2018 (HFHHA 2018) creates a new right for tenants where their landlords have failed to maintain their home to the appropriate standard. The hope is that this legislation will improve housing conditions for tenants.
This new piece of legislation has only been in force for a little over three weeks, and therefore this article only provides an overview of the HFHHA 2018 and what obligations it enforces. However, as the HFHHA 2018 is already being argued by those acting for tenants, we can expect its scope and interpretation to come before the courts imminently.
What is it?
The HFHHA 2018 amends the Landlord and Tenant Act 1985 (LTA 1985) sections 8 to 10 and inserts new sections 9A, 9B and 9C.
As the name suggests, the primary purpose of the HFHHA 2018 is to imply in to most (but not all) tenancy agreements that the dwelling must be fit for human habitation at the commencement of the tenancy agreement, and that the dwelling remains fit for human habitation until the tenancy is determined.
When did it come into force?
The HFHHA 2018 came in to force on 20 March 2019 and applies to all tenancies of properties in England that have commenced on or since that date which are residential tenancies granted for a term of less than seven years and to certain longer-term tenancies in the social housing sector. This means that it applies to all tenancy agreements that began as a fixed term before the commencement date but become a periodic tenancy after the commencement date. It will apply to statutory periodic tenancies arising after an assured shorthold fixed term; a secure tenancy arising after an introductory tenancy; or an assured tenancy after a starter tenancy.
However, there are tenancies that it will not yet apply to: periodic tenancies, secure tenancies and assured tenancies that had already commenced on the commencement date are not affected, but pursuant to section 9B(4), they too will be covered by the HFHHA 2018 from 20 March 2020.
When is a dwelling not fit for habitation?
Essentially, fit for human habitation means that a dwelling must be safe, healthy and free from things that could cause serious harm. The aim is to give tenants a way to make sure irresponsible landlords improve their properties to an appropriate standard; if they do not, the tenant has recourse through the courts.
In determining whether a house is unfit for human habitation, landlords and tenants can look at section 10 of the LTA 1985:
“(1) In determining for the purposes of this Act whether a house or dwelling is unfit for human habitation, regard shall be had to its condition in respect of the following matters—
freedom from damp,
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;
and the house or dwelling shall be regarded as unfit for human habitation if, and only if, it is so far defective in one or more of those matters that it is not reasonably suitable for occupation in that condition.
(2) In subsection (1) “prescribed hazard” means any matter or circumstance amounting to a hazard for the time being prescribed in regulations made by the Secretary of State under section 2 of the Housing Act 2004.
(3) The definition of “hazard” in section 2(1) of the Housing Act 2004 applies for the purposes of subsection (2) as though the reference to a potential occupier were omitted.”
(Section 10, LTA 1985 [as amended by the HFHHA 2018].)
What is a prescribed hazard?
A prescribed hazard means any matter or circumstances amounting to a hazard prescribed in regulations made under section 2(1) of the Housing Act 2004 (that is, the list of twenty-nine Housing Health and Safety Rating System (HHSRS) hazards).
What is the test?
It appears to me that the court will have to consider the following:
- Does a hazard exist? The court will have regard to the section 10 list detailed above and may include a finding of a category 1 or 2 hazard under a HHSRS assessment. The court may benefit from expert evidence, but it is not always going to be necessary.
- If a hazard does exist, does its existence make the dwelling not suitable for occupation? This will be a question of fact in each instance.
- Was the landlord on notice of the hazard? There are no express provisions in the HFHHA 2018 that require the landlord to be on notice of the hazard. However, as those experienced in disrepair claims under section 11 of the LTA 1985 will be aware, common law notice requirements apply; I can see no reason why the same won’t be true under the HFHHA 2018.
- What damages (if any) should be paid to the tenant? It is likely that general damages will be assessed on a similar basis to the assessment of quantum in disrepair claims; that is, what loss in amenity has the tenant suffered because of the hazard?
- Does the tenant have any other remedies? The tenant may also seek an order for specific performance.
So, what next?
The HFHHA 2018 has given tenants a new way to force their landlords to improve conditions in their homes and, if appropriate, to be compensated for the loss. I am intrigued to see how this new piece of legislation is going to work alongside the existing disrepair arguments, and I am sure that over the next twelve months there will be a swathe of county court judgments addressing the use and scope of the HFHHA 2018.
This article was first published in Thomson Reuters Practical Law Property Column.