On 20 March 2019 the Homes (Fitness for Human Habitation) Act 2018 (the 'Act') will come into effect. This will change the way in which many disrepair claims are dealt with and increase the obligations of both private and social housing landlords.

What is changing?

One of the key purposes of the Act is to update the Landlord and Tenant Act 1985 with a term that a landlord must provide residential accommodation to tenants that is in a state fit for human habitation.

Currently, a landlord's rented property only has to be fit for human habitation if the annual rent is either £80 per annum in London, or £52 per annum, outside London.

The Act will apply to any new residential lease which is for a term of less than seven years. In addition, it will apply to secured, assured and introductory tenancies for a fixed term in excess of seven years. Periodic tenancies already in existence will have a year's grace and will not need to comply with the Act until 20 March 2020.

Even landlords of long leasehold interests could be affected by the changes. This is because the definition of assured tenancies in section 1 of the Housing Act 1988 does not contain an exemption for long leases. Therefore, even a lease with a long term can fall within the definition if it satisfies the requirements set out in the Housing Act. Leases with low annual ground rents (£1000 or less in Greater London; £250 or less, elsewhere) are outside the regime.

When will a property be unfit for human habitation?

A property will be considered 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:

  • 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; and
  • In relation to a dwelling in England, any prescribed hazard.

It is important to note that the above list applies to the common parts of the building, Therefore, if a hallway, for example, was lacking in lighting, or suffered from damp, it could render the properties with rights over that hallway unfit for human habitation.

What is a 'hazard'?

A hazard is defined in Section 2 of the Housing Act 2004, and is any risk of harm to the health or safety of an actual or potential occupier of a dwelling which arises from a deficiency in the dwelling or building in the vicinity.

It should be noted that health includes mental health. These hazards are then further split into either category 1 or category 2.

Category 1 hazards are hazards that pose an immediate and serious risk to the tenant's health. Category 2 hazards are less serious or urgent. The 29 categories of housing hazards that are identified in the Housing Health and Safety Rating System include damp and excess cold..

Damp properties

There will be additional obligations on the landlord in relation to properties that suffer from damp. The landlord will need to ensure that there are no health risks to the tenant, and will be obliged to take action to eradicate the damp altogether.

In the past tenants have often been held responsible for damp if they have not ventilated the property, for example by not opening windows. The Act could see responsibility shifted back to the landlord, especially where there are health concerns. It remains to be seen how this will play out.

What happens if a property is not fit for human habitation?

If a landlord fails to put the property into a state of fitness for human habitation then the tenant will be able to take action against them. The court can order the landlord to put the property into the required state, and the tenant will be able to bring a claim for damages for breach. Although it is not set out in the Act it is likely that damages will be assessed on the existing basis for claiming damages, i.e.loss of amenity.

To assist landlords in complying with the Act, it provides landlords (in England) with a right of entry to inspect the condition of the property after having given notice to the tenant.

From 20 March 2019, if the property is unfit for human habitation there are only a few situations where the landlord will not be liable. Examples are:

  • where the disrepair has been wholly or mainly attributable by the tenant's own breach of covenant or obligation.
  • if the property is uninhabitable due to a fire, storm, or flood or other inevitable accident the landlord will not be required to reinstate the property.
  • If the tenant is obliged under the lease to carry out works or repairs, or where the tenant has a duty to use the property in a tenant like manner.
  • If the works would put the landlord in breach of any other obligation or enactment regardless of when it was made.
  • if the landlord requires consent from a superior landlord or third party but has been unsuccessful in obtaining this, after making reasonable endeavours to obtain it.

Although the landlord will not be required to carry out any works for the tenant's breach of its obligation to use the property in a tenant like manner, any attempt by the landlord to exclude or limit its obligations under the Act will be void. In addition, any term in the lease which would penalise or restrict the tenant for enforcing or relying on the Act will be void.

It is clear that whilst the Act doesn't raise particularly new concepts, it is intended to reflect and resolve the many problems that tenants are experiencing on a daily basis. Therefore, it is likely to empower many tenants in taking a stand and raising claims against their landlords. However, until it has been tested in the Courts we won't know how much the Act will detrimentally affect landlords, which is why they will need to be aware of its implications and review their portfolio for any questionable properties.