On 20 March 2019 the Homes (Fitness for Human Habitation) Act (the Act) will come into force. This contains some important changes in the law of which landlords of residential properties should be aware.

To which tenancies does it apply?

Broadly it will apply to residential leases of less than 7 years and any other tenancy to which section 11 Landlord and Tenant Act 1985 (LTA 1985) applies.

It will apply to all tenancies created on or after 20 March 2019 and to all existing fixed term tenancies which become periodic after 20 March 2019. For existing periodic tenancies there is a 12 month period of grace and the Act will come into force on 20 March 2020.

How does it work?

The Act amends the LTA 1985 to imply into the tenancies to which it applies a covenant by the landlord that the home is at the outset of the tenancy, and remains for its duration, in a condition fit for human habitation. Any tenancy clause to the contrary is void.

What is "fit for human habitation"?

Section 10 LTA 1985 (as amended) states:

"In determining for the purposes of this Act whether a house is unfit for human habitation, regard shall be had to its condition in respect of the following matters:

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, in relation to a dwelling in England, any prescribed hazard;

and the house 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."

A prescribed hazard appears to refer to any hazard within the meaning of the Housing Health and Safety Ratings System (HHSRS).

It remains to be seen how the legislation will be interpreted once it reaches the Courts, but it must be a matter of degree. A damp patch in the hall cupboard is unlikely to render a home unfit for human habitation whilst the entire ground floor walls being covered in thick mould may be more likely to render it so. It may be that in addition to evidence of surveyors, other experts such as environmental health officers or indeed medical experts with knowledge of how housing conditions can affect (for example) respiratory problems, may be required to establish whether or not a home is fit for human habitation.

What if a house is found not to be fit for habitation?

As this is an implied term of the tenancy then breach of it is likely to entitle a tenant to apply to the Court for an order for specific performance of the landlord's repairing covenant and for damages for disrepair on a similar basis to at present.

What is the main difference to the law now?

Before the Act comes into force landlords are only liable for items which were actually in disrepair. Thus, for example if a property was cold as the windows were poorly insulated that is not disrepair, unless at some stage the windows had been in a better condition and had deteriorated.

Similarly, inadequate ventilation is not disrepair. "Inherent defects" such as the absence of a damp proof course is also currently not disrepair (although landlords could in some cases be required to remedy such defects if they caused other defects which were disrepair and there was no other realistic way of preventing recurrence).

However these items could all be capable of causing a house to be unfit for human habitation and therefore potentially breach the landlord's new obligations now coming into force..

In some ways this is similar to the HHSRS in which local authorities can compel landlords to undertake works through improvement notices for which there are various sanctions for non-compliance. However, this did not give rise to a civil liability to the tenant and could only be enforced by a local authority not a tenant. The Act changes that position.

It is unlikely that the Act has gone un-noticed in the claimant disrepair community. Landlords may therefore start to notice claims management companies visiting their estates to investigate potential claims in addition to a potential increase in defences to rent possession claims based on property condition.

Are there any limits to the landlord's obligations?

It is likely that the same common law principle about notice will apply to this legislation as already apply to repair, namely that for any part of the property let out to a tenant the landlord will not be liable for any breaches of the implied covenant until it is on notice of the problem and has had a reasonable time to remedy it.

The Act does specify that landlord will not be liable for anything arising from a breach of the tenant's duty to act in a tenant-like manner. By way of example if there is adequate heating, insulation and ventilation but the tenant fails to use the ventilation, never uses the central heating and runs an unvented tumble drier in the property leading to condensation mould, that will not breach the covenant as it is the tenant's fault.

The Act also states that the landlord will not be liable to undertake works which fall into any of the following categories:

  • to rebuild or reinstate the dwelling in the case of destruction or damage by fire, storm, flood or other inevitable accident
  • works to anything belonging to the tenant
  • works which, if carried out, would put the landlord in breach of any obligation imposed by legislation; and
  • works requiring the consent of a superior landlord or other third party (eg a mortgage lender), where consent has not been obtained following reasonable endeavours to obtain it.

Is there anything in the Act for landlords?

The Act also implies covenants on the part of the tenant to allow access to the landlord to conduct inspections of the property condition during reasonable hours on giving at least 24 hours' notice. Where tenancy agreements do not already contain such express terms this will assist landlords in ensuring their properties are up to scratch.

What should landlords do ?

  • Before letting out any property on a short term tenancy, ensure that it is fit for human habitation. This may involve some potentially significant improvements as well as repairs, especially to some older properties
  • For any existing tenancies which are already periodic the landlord has a year to get the property up to the relevant standard
  • Ensure that repairs and maintenance departments are aware of the new law and apply it in determining which works are required
  • Make any necessary changes to void property procedures in line with the requirements of the Act.