While the Homes (Fitness for Human Habitation) Act 2018 has been put forward as new legislation by many observers it is in fact an amendment to the Landlord and Tenant Act 1985. The new act brings into law the habitation regulations contained in the original Landlord and Tenant Act 1985 with some new additions. The act received Royal Assent on 20 December 2018 and comes into force on 20 March 2019.
Is the act anything to worry about?
The fact is that 99% of landlords will already abide by all of the regulations within the new Homes (Fitness for Human Habitation) Act 2018. In practical terms the act only relates to England with Wales having its own fitness consultation. One subtle change is the fact that the courts will decide whether a property is habitable under the Homes (Fitness for Human Habitation) Act 2018 if there is confusion.
Tenancies to which the act applies
From 20 March 2019, all new tenancies (of less than seven years) and renewals of existing tenancies will fall under the umbrella of the act. It will also apply to fixed term tenancies which become periodic on or after 20 March 2019. Where a tenancy has already become periodic the act will not apply until 20 March 2020.
Fit for human habitation
In simple terms the act inserts different sections into the Landlord and Tenant Act 1985 which are:-
• Section 9A(1)
1. A covenant that the dwelling is fit for human habitation at the time the lease is granted and renewed after 20 March 2019
2. The property will remain fit for human habitation for the full term of the lease
• Section 9A(2)
There are a number of exceptions to the covenant where a landlord is not required to:-
1. Carry out repairs caused by tenant negligence
2. Rebuild/reinstate the property if damaged by fire, storm, flood or other accidents
3. Maintain or repair any items which the tenant is entitled to remove when they leave the dwelling
4. Carry out repairs which would put the landlord in breach of any obligations or enactments
5. Carry out repairs which require the consent of a superior landlord/3rd party where the consent has not been received
Covenant of inspection
When looking to inspect the property a landlord must:-
• Visit at reasonable times of the day
• Give the tenant at least 24 hrs notice in writing
Conditions which imply a property is unfit for human habitation
Under the old act a property is deemed unfit for human habitation if:-
• Repairs are required
• The property is not stable
• Not free from damp
• Has limited natural lighting
• Has no ventilation
• Has no water supply is available
• There is substandard drainage and sanitary conveniences
• The internal arrangement is dangerous
• There are no facilities for preparing food and disposing of waste water
The new act brings in an array of different factors from 20 March 2019 to create an expended list. A property will now be deemed unfit if there is evidence of:-
1. Damp and mould growth
2. Excess heat
3. Excess cold
6. Carbon monoxide caused by faulty fuel combustion products
9. Uncombusted fuel gas
10. Volatile organic compounds
11. Illegal crowding/lack of space
12. Entry by intruders
13. Substandard lighting
14. Unlawful levels of noise
15. Substandard domestic hygiene
16. Inadequate food safety provisions
17. Lack of personal hygiene, sanitation and drainage
18. Faulty water supply
19. Uneven surfaces and dangerous stairs
20. Electrical hazards
21. Flames, hot surfaces, etc
22. Danger of fire
23. Potential collision and entrapment
25. Badly positioned and inoperable amenities
26. Structural defects and falling debris
It is worth noting that the “unfitness” liability of the landlord will not start until they have been informed of the issues. It is then the responsibility of the landlord to arrange speedy repairs otherwise the tenant can take the landlord to court for the cost of any repairs required or for any work they have already carried out. There is also the opportunity to claim damages if living standards have been impacted for a prolonged period of time.
On the surface this seems yet another attack on landlords as the legal rights of tenants are further strengthened. In reality, it is an amendment to existing legislation with a number of additional hazards/conditions added to the list. The reality is that the majority of landlords already ensure their properties are more than fit for human habitation and in HMOs all communal areas are also fit for purpose.
It will be interesting to see how the courts approach the subject of potential damages for tenants who have been forced to live in effectively unlawful environments. It is unlikely to be very long before we see the first legal challenges!