Even without a written tenancy agreement, landlords have responsibilities for repairs which they cannot avoid. This is because the law implies certain repairing obligations into tenancy agreements. The most well-known of these are the statutory implied terms set out in s11 of the Landlord and Tenant Act 1985. Under this provision, landlords are responsible for repairing the structure and exterior of the dwelling as well as keeping in repair and proper working order the installations in the dwelling-house for the supply of water, gas and electricity and for sanitation and the installations for space heating and heating water.

However, there are other repairing obligations implied into tenancy agreements which are less well recognised. One of these is the term implied at common law that furnished accommodation is fit for human habitation at the start of the tenancy.

When does the obligation arise?

This implied term only applies when furnished accommodation is let for immediate occupation. It is not applicable when premises are let unfurnished. The obligation also only arises at the outset of the letting. If the premises are fit for habitation at the commencement of the tenancy, there is no obligation on the landlord to keep them in that condition. However, if the accommodation is unfit at the time of letting and this is only discovered at later stage, then the obligation is still triggered. It is the unfitness at the start of the tenancy which is key.

Fit for human habitation

To understand what is meant by the expression ‘fit for human habitation’ it is useful to look at cases where the courts have judged accommodation to be unfit for human habitation.

They key case in this area is the 19th century decision of Smith v Marrable (1843) 11 M& W5.

In September 1842, Sir Marrable agreed to rent a furnished house in Brighton for a period of five to six weeks. The day after he and his family moved in, his wife, Lady Marrable, discovered that the house was infested with bugs. Following the landlord’s unsuccessful attempt to rid the house of the infestation, Lady Marrable notified the landlord that they were leaving the property and they would only pay one week’s rent. The landlord sued for the rent balance.

The judges ruled in favour of the Marrables, concluding that an implied condition in the letting of a furnished house is that it shall be reasonably fit for habitation; if it is not (for example where it is infested with bugs) the tenant may quit without notice.

The principle was established that where a furnished property is let unfit for human habitation, the tenant has the right to repudiate the contract and move out.

Subsequent cases have built on this decision and provide further examples of when a property would be considered unfit. Examples from case law include properties where:

  1. There is defective drainage or sewerage systems;
  2. The property is infected (one case involved a property infected with measles while another concerned a house in which a person had recently been suffering from pulmonary tuberculosis);
  3. There is a lack of safety (where, for example the walls are so dilapidated that it is unsafe to continue living at the property);
  4. There is an insufficient water supply.

Accommodation may also be considered unfit for human habitation if there are hazards as defined by the Housing Health and Safety Rating System (HHSRS), introduced by the Housing Act 2004. This new system replaced the ‘fitness for habitation’ standard set out in the Housing Act 1985.

What can the tenant do?

If a tenant moves into a property which is unfit for habitation at the outset, he or she has the option to leave and not be bound by the tenancy agreement. This is because the unfitness of the property is considered to be a repudiatory breach of contract (i.e. a breach that goes to the very core of the contract preventing the primary obligations under the contract from being performed.) The tenant may also claim compensation for breach of contract.

It is very important for the tenant to seek specialist legal advice at an early stage if these circumstances apply. Paying rent or delaying in moving may result in the tenant being deemed to have affirmed the tenancy agreement and the right to leave may be lost. On the other hand, if rent is not paid, the tenant runs the risk of being sued for rent arrears.