On 19 January 2018 the Homes (Fitness for Human Habitation and Liability for Housing Standards) Bill passed its second reading in the House of Commons . The purpose of the Bill is to amend the Landlord and Tenant Act 1985 requiring residential rented accommodation to be provided and maintained in a state of fitness for human habitation. Highly unusually for a Private Members Bill brought by an opposition MP, it now has the support of the Government which means that it is almost certain this Bill will become law, probably later this year.
Statutory provision for fitness standards of rented properties were created as long ago as 1885 by the Housing of the Working Classes Act.
Currently, there are statutory obligations on landlords to keep in repair the structure and exterior of their properties, and to repair installations for the supply of water, heating and sanitation.
In addition the Housing, Health and Safety Rating System (HHSRS) is used to assess risks to health and safety in the home by looking at the likelihood of particular faults or deficiencies which could cause injury or ill health, or impact on the wellbeing of those living in the property. The HHSRS is considered to be complex and whilst allowing tenants to complain to their local authority in the hope that they take action, it does not allow tenants to take action directly against their landlords.
Provisions requiring landlords to ensure that their properties are fit for human habitation currently set out in s8 Landlord and Tenant Act 1985 no longer have any real effect due to annual rent limits above which the provisions do not apply. These have not been increased since the 1950's and currently stand at rents £52 (£80 in London) per annum.
The Bill intends to give all tenants in England a right to a home that is fit for habitation under their tenancy agreement. Their landlord will have an obligation to keep the property fit for habitation at the start and throughout the tenancy, regardless of whether the problem is caused by a lack of repair or a problem with the nature of the property itself.
The duty will apply to the same types of tenancy as are covered by current statutory repairing obligations: that is, both social housing and private rented sectors with the exception of long (over 7 years) leases. The obligation will not apply in respect of:
- any works for which the tenants are liable as a result of their failure to use the property in a tenant-like manner, or
- any works to any item that the tenants are entitled to remove from the dwelling.
In addition, the duty only applies if notice is given to the landlord allowing an opportunity to remedy any issues. Such a notice would give rise to an implied covenant by the tenant to allow the landlord access to carry out any works necessary to discharge the new duty.
The new section 8 will allow tenants to take legal action against any landlord failing to conform to the fitness obligation, in the same way as current legislation can be used against a landlord for failing to carry out repairs. Although it will apply to all types of residential landlords including local authorities and housing associations, its impact is expected to be felt mainly in the private rental sector.
The Bill will initially only apply to new or renewed fixed term tenancies after it is implemented. It will then apply to periodic tenancies 12 months after the bill comes into force, giving landlords time to ensure properties are up to standard. There will thus be no retrospective effect of the Bill on existing tenancies unless and until they expire and a tenant starts to hold over.
Landlords may have considerable uncertainty as to the standard required. However, the term "fitness for human habitation" is defined in the Landlord and Tenant Act 1985. According to the Act, a property is to be regarded as unfit for human habitation if it is so far defective in one or more of the following matters that it is not reasonably suitable for occupation in that condition:
- 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 addition the Bill proposes to amend the legal definition of housing ‘fitness’ to include any category 1 hazard under the HHSRS.
Impact for landlords
The practical impact for landlords is that condensation due to poor ventilation, mould growth, inadequate or no heating, dangerous stairs and fire safety issues will all be matters that a tenant can take action to have put right and, where they have not been put right, to seek compensation. Currently, these are all mattes that a tenant might find difficult to force a landlord to remediate under the present legislation.
Are we to see that these matters may become a new market for claims companies against landlords? As with claims brought by tenants under current legislation claimant tenants will need hard evidence, and any vexatious or malicious cases will continue to be robustly defended.