Party like it’s 1957

1957 was an important year. Russell Endean became the first man to be out “handled the ball” in a Test Cricket match. Anthony Eden resigned and Harold Macmillan became PM. The Cat in the Hat was first published. And it was the last time that anyone updated the rent levels in the statutory covenants relating to fitness for human habitation.

Which brings me to s.8, Landlord and Tenant Act 1985. Section 8 is, I suspect, a provision that most of you skip over on your way to s.11, 1985 Act. But it deserves your attention. From the Housing of the Working Classes Act 1885 onwards, there had been an implied covenant that rented property would be “fit for human habitation”. The covenant was, in practice, limited to “working class” properties, usually by way of a rental limit.

The most recent form of that covenant is in s.8. Under that provision, there is an implied covenant that a property will be fit for human habitation when let and that the landlord will ensure it remains so during the tenancy. It only applies, however, to leases of less than three years where the rent is less then £80 p.a. (London; £52.p.a elsewhere). For leases granted before 1957, the rent limits are even lower.

Remarkably, these rent limits were not increased after 1957 and the effect of inflation since then has been to deprive this provision of any meaning. This sad state of affairs has been remarked upon by the Law Commission in 1996, which produced a draft Bill to modernise repairing covenants in residential leases. That report recommended removing the rent caps in s.8.

As we know, Parliament did nothing. The Court of Appeal has been very critical of this inaction. In Issa v Hackney London Borough Council (1997) 29 H.L.R. 640, the court noted that the failure to update s.8 left tenants

 …wholly without remedy in the civil courts against their landlords, however grievously their health may have suffered because they are living in damp, unfit conditions…

Likewise, in Habinteg Housing Association v James (1994) 27 HLR 299:

We are told that the Law Commission has been considering such a problem. It is to be hoped that they will recommend a solution. What is more, it is hoped that if they do, Parliament will carry it out. Judges and lawyers are sometimes reproached when the law does not produce the right result. There are occasions when the reproach should be directed elsewhere.

By the standards of the Court of Appeal, that’s pretty stern stuff.

Which brings us to Karen Buck MP and the Homes (Fitness for Human Habitation) Bill which she has introduced via the Private Members Bill system.* Her Bill repeals the current s.8, LTA 1985 and replaces it with a slightly modified version of the clause drafted by the Law Commission in 1996. In general terms, all leases of less than 7 years would be subject to a covenant that they must be fit for human habitation when let and that the landlord must keep them in such a condition for the duration of the tenancy. The obligation could be enforced by a tenant bringing a damages claim/injunction claim as with the current s.11.

Mindful of the need to strike a fair balance, the Bill protects landlords against unmeritorious claims by exempting damage caused by the tenant himself or by natural disaster and makes clear that it does not apply to property owned by the tenant (e.g. it won’t require a landlord to replace a freezer which belongs to the tenant).

It also updates s.10, 1985 Act by providing that the presence of a Category 1 Hazard (HA 2004) is also to be treated as a factor for assessing fitness for these purposes.

There is more about the Bill on the Red Brick blog (here), including explaining why the present law (s.11, LTA 1985, HA 2004, EPA 1990) doesn’t really protect tenants as well as a modernised s.8 would do.

The second reading of the Bill will be in October. Given that the Law Commission and Court of Appeal have implored Parliament to remedy this problem, and that Wales seems about to do so in the Renting Homes (Wales) Bill, it is to be hoped that it makes progress.

 

  • J and NL had a hand in drafting the Bill. S and Chief helped catch our errors.

 

About J

J is a barrister. He considers housing law to be the single greatest kind of law known to humankind and finds it very odd that so few people share this view.
Posted in Disrepair, Housing law - All.

9 Comments

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  2. This is a most welcome move by Ms Buck and I am particularly pleased with her continuing support for Environmental Health Officers. In introducing the Bill, she said that “The truth is, the resources going into environmental health are very limited and the quality of enforcement varies hugely across the country. What I wanted to do was give tenants an ability to take action against their landlords without having to rely on local authorities.” But surely for any tenant action to be brought against their landlord, and to be successful, would have to rely on a proper assessment of whether the home was still “fit for human habitation” – and isn’t this the role of the EHO? Where will the resources come from for this?

    • There would be a range of options. In some cases, the issue would be clear and evident. In others, an independent EHO or HHSRS trained surveyor could be used, in the same way as an expert is currently used in Section 11 proceedings. Or, if a local authority EHO has inspected, identified hazards but the LA is not taking enforcement steps (or delaying in doing so), the tenant could rely on that inspection having identified Cat 1 hazards.

    • Thanks Giles,

      I am reassured by this, and I know that one of our more senior CIEH members and housing experts has been in contact with Karen Buck about this Bill. I would say however that there are not as many independent/consultant EHPs out there as one might think; we regularly point enquirers in the direction of those that we know of, but there are large parts of country where there is little coverage.

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