Fitness for Habitation 2.0 – Q&A and call to arms

If you haven’t already heard, Karen Buck MP got fourth place in the 2017 ballot for private members bills. And she has taken this opportunity to bring forward a new version of the ‘Fitness for Habitation’ Bill that was filibustered in 2015 (and then was voted down as an amendment to the Housing and Planning Bill as was in 2016. Twice.)

The “Homes (Fitness for Human Habitation and Liability for Housing Standards) Bill” is now due for second reading on 19 January 2018. When documents and details are available, they will be here.

For clarity, a couple of us have been working with Karen on both the previous Bill and this one. And you are likely to hear quite a bit more about this Bill as things go on. We will be unashamedly and unapologetically campaigning for it.

What does the Bill do?

As currently drafted, the Bill does the following:

It replaces section 8 Landlord and Tenant Act 1985 (and the rent limits last changed in 1957) to provide for an implied covenant by the lessor in the lease/tenancy of any lease of a dwelling for a term of less than 7 years that:

(a) that the dwelling is fit for human habitation at the time of the grant;

and,

(b) that the lessor will thereafter keep it fit for human habitation.

In an identical manner to section 11(1A) Landlord and Tenant Act 1985, the covenant extends to “any part of the building in which the lessor has an estate or interest”, so not just to the specific flat or room demised. (This is an addition to this version of the Bill from the 2015 version).

This implied covenant does not require the landlord to:

(a) to carry out works or repairs for which the lessee is liable by virtue of his duty to use the premises in a tenant-like manner, or would be so liable but for an express covenant on his part,

(b) to rebuild or reinstate the premises in the case of destruction or damage by fire, or by tempest, flood or other inevitable accident,

(c) to keep in repair or maintain anything which the lessee is entitled to remove from the dwelling-house,

(d) to carry out works or repairs which, if carried out, would put the lessor in breach of any obligation imposed by statute or subordinate legislation;

(e) to carry out works or repairs which require the consent of a superior landlord and which consent has been refused (whether reasonably or otherwise).

And there is no liability if the unfitness is due to:

(a) the lessee’s own breach of covenant; or,

(b) disrepair which the lessor is not obliged to make good because of an exclusion or modification under section 12 Landlord and Tenant Act 1985.

Section 10 of the L&TA 1985 is amended so that the list of matter to be considered for unfitness would read:

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;

any other matter or matters that may amount to a Category 1 hazard under section 2 Housing Act 2004.

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 Category 1 hazard is a “serious and immediate risk to a person’s health and safety”.

All of this would only apply to new tenancies after the date it was in force. As an implied contractual term, it cannot be otherwise. The same was, of course, true of section 11 L&TA 1985.

That isn’t quite all the Bill does. I’ll come back to the other bit below.

What does this mean and why is it important?

There are two big issues.

Firstly, tenants in general (private or social) have no way of enforcing property standards or fitness considerations themselves. Section 11 L&TA 1985 requires something to be out of repair (if it ain’t broke, it won’t get fixed, even if dangerous), and effectively the same applies for Section 4 Defective Premises Act 1972. Statutory nuisance proceedings under Section 82 Environmental Protection Act 1990 (contrary to the view expressed by a QC on radio 4) do not cover the same ground, as it is only relevant where a nuisance is affecting the demised premises. It would not cover, for example, a fire safety risk to the premises or the building. And of course, even for something like mould growth due to condensation through design defects, simply wiping away the mould removes the potential prosecution even though this makes no difference whatsoever to the remaining cause.

There are a whole host of ‘fitness’ issues, from properties being prone to condensation and mould growth, through to fire safety risks from construction or refurbishment, about which tenants, social or private, can effectively do nothing at all and have no direct recourse.

Second, it is of course true that exactly these fitness standards can be enforced – for private sector tenancies – by the local housing authority (the council) via an HHSRS inspection and enforcement under Housing Act 2004. However, there is a huge degree of variability in inspection, notices and enforcement rates by councils. Many, apparently about 50%, have served none or one HA 2004 notice in the last year. I gather that LB Newham, which has an active enforcement policy on the back of its borough-wide licensing scheme, amounted to 50% of notices served nationally and 70% in London.  What this means (and given council funding is likely to continue to mean) is that there is a complete postcode lottery on the prospects of councils taking steps – with the real and general prospect being that the council won’t do so.

For social tenants, the situation is worse yet.

While technically councils can enforce against housing associations, it is, in my experience and on the statistics, rare for them to do so – to even to inspect and report, let alone enforce.

For council  tenants, the Housing Act 2004/HHSRS standards are all but pointless. Local Housing Authorities cannot enforce against themselves – as a fairly basic issue of law. A legal entity cannot take proceedings – civil or criminal – against itself. So council tenants have no way to enforce or seek to have enforced basic fitness standards, including fire safety.

The extent of the problems? Well according to the latest English Housing Survey:

16.8% of private tenanted properties have Category 1 hazards – that is 756,000 households, at least 36% of which contain children)

244,000 social tenanted properties contain Category 1 HHSRS hazards

So, that is a million properties. Very likely more than 3 million people, including children, living in properties that present a serious risk to health and safety.

Objections and why they are wrong

This is yet more regulation on landlords

No, it is not adding any additional property standards or requirements. It is simply giving tenants the ability to enforce already existing standards that landlord are expected to meet.

This will mean extra costs and will put rents up

Any costs involved in bringing properties up to a standard where there are no ‘category one’ hazards (again, that being a “serious and immediate risk to a person’s health and safety”) should rightly fall on the landlord. No tenant should have to live in a property that presents such a risk. There will be no costs to the Government involved, as this would wholly function on a ‘polluter pays’ principle.

Tenants would be able to bring a claim for rectification of risk and damages. There would be legal aid at least for the removal of risk element, though not a damages claim, under LASPO rules.

There is no established fitness standard

There is case law under section 4 Defective Premises Act 1972, but, more immediately, the Bill imports the Housing Act 2004 HHSRS standard, so there is an established fitness standard that landlords should already be meeting.

There is no need for this as councils have the powers they need

This is partly true, but the actuality of enforcement is, for the most part, atrocious. Why should tenants not have an independent right to enforce where a council fails to?

And of course, as Grenfell made horribly clear, council tenants need an ability to enforce safety standards against their landlord, which is currently impossible.

Isn’t this something that the Ombudsman or a redress scheme could deal with?

Simple answer – no. Ombudsman or redress schemes are about failures of service. They are not up to dealing with failures to meet legal obligations. They can censure bad performance (and award usually peanuts sums in compensation) but that is the extent of it.

For an example, the housing ombudsman dealing with a failure to repair can censure the landlord for not dealing with the tenant’s complaints within a reasonable time, but cannot make an enforceable order for the landlord to carry out repairs.

In a situation where the tenant has no legal rights to have fitness issues addressed, there is, bluntly, nothing that any ombudsman or proposed ‘redress’ body could do about it, apart from mark their disapproval at the landlord’s failure to respond to issues raised by making a paltry compensation award.

Without a power to compel rectification of the issues, and make enforceable orders, an ombudsman approach will be useless. And making enforceable orders is what the court is for.

One more thing

The Bill also adds this:

Amend section 38, Building Act 1984 as follows:
(a) after subsection (4), insert:
“(5) The Secretary of State must, within 12 months of the relevant date, make regulations under subsection (1) which provide for owners and occupiers of residential properties to be afforded the remedies provided for in that subsection.
“(6) The relevant date is 12 months after the Homes (Enforcement of Housing Standards and Liability for Housing Standards) receives Royal Assent.”

Section 38 Building Act 1984 made provision for direct liability for damage caused by breach of building regulations. But this required regulations to be made by the Minister to come into effect. No such regulations have been made. So, establishing liability for damage (death or injury) now means establishing all the elements of negligence.

If regulations are made, then liability for breach of building regulations would be a statutory tort, and only the fact of the breach would be required (subject to defences set out in regulations). The builder/developer would be liable to the person caused damage.

The amendment in the Bill simply requirement regulations to be made within 12 months.

Next steps

The second reading of a private member’s Bill is a crucial stage. The key issue is time. They can be talked out.  However, if one hundred MPs are present, a vote can be forced to prevent talking out of the Bill at that hearing. That has to be the first target for the Bill.

Please contact your MP to ask them to attend the second reading on 19 January 2018. If you can give them concrete examples of why the Bill will be important for tenants in your area/their constituency, this would be a really good idea. Those MPs who do constituency clinics will have encountered the issues, but may not understand the legal reasons why they can’t actually get anywhere for their constituents on their problems. A brief explanation may help. As may an explanation of why, post Grenfell, tenants being able to take steps on safety is oh so obviously important.

This is a simple piece of legislation. Straightforward,  and even, dare we say it, elegant. But it will have a very real and important value for social and private tenants in the future. If there is any time that this should be put into law, it is now.

About Giles Peaker

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +.
Posted in Assured Shorthold tenancy, assured-tenancy, Disrepair, Housing law - All, secure-tenancy and tagged .

29 Comments

  1. A couple of comments, 1. On a practicial point and not as an apologist, what happens to residential shorthold tenants of low end housing that falls herein and currently legislation with associated low rents on poor income who are unable to get any housing or housing / income benefit when the properties are deemed unfit and are closed down. Is the goverment and local authority going to make extra provision or will they end up on the street or abused in unregulated blackk marked housing?
    2. S38 building Act amendment is the cart before the horse. Why has the biulding passed planning and building regulations when it is in breach in the first place so as to cause tort damage and what of the local authority to whom the law as we know in case law holds no responsibilty ?

    • Otto, I’m not entirely clear what your point is here. A prohibition order would be made by the local authority under Housing Act 2004 powers and has nothing to do with the Fitness Bill. If people are made homeless as a result, then the usual homeless duties apply.

      Reform of building regulations is beyond the scope of a private members bill and will possibly be an issue for the Grenfell Inquiry in any event. But s.38 would remain relevant. The construction of a building may not be according to the planning and building regulation approval. ‘Hidden’ defects are hardly unknown.

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  3. “Section 11 L&TA 1985 requires something to be out of repair (if it ain’t broke, it won’t get fixed, even if dangerous)”

    I would think that anything dangerous (e.g. electricity, heating, etc.) cannot be said to be in “proper working order”.

    • How about cladding on a tower block? Or a design defect leading to serious cold bridging, condensation and mould?

      Or heating that is completely inadequate for the space? Or a lack of ventilation? Or doors that aren’t fire safe?

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  6. Dumb question Giles, but what basis are the rent limits in Section 8 set on? Weekly, monthly or annual?

  7. This is hugely worthwhile and much needed.

    It is appalling that so many properties are tenanted in this condition, including social tenated properties. That so many are living in such conditions shows that such legislation is necessary.

    Although those figures (or even a fraction of them) should be sufficiently persuasive by themselves, this would be given greater weight if supported by some indication of the economics: healthcare costs, lost productivity, etc. (At a wild guess it would seem likely to be over £3bn p.a.). i.e. the taxpayer is currently picking up this cost, and as you aptly say, this bill is “polluter pays”.

    A few geeky comments/questions:-

    1. In the implied covenant, it seems that (a) is properly a warranty or representation rather than a covenant. Would it not be better to have (a) as a warranty (replacing the word ‘condition’ in LTA s.8(1)(a)) and (b) as covenant (replacing the word ‘undertaking’ in LTA s.8(1)(b).)

    2. Is there any reason not to extend this to all secure tenancies? (so including secure tenancies for fixed term over 7 years) as with the scope of the repairing obligation in s.11 LTA 1985 as given in s.13(1A)(a) : “a secure tenancy for a fixed term of seven years or more granted by a person within section 80(1) of the Housing Act 1985 (secure tenancies: the landlord condition”).

    3. The avoidance of contracting out currently in s.8 is nowhere near as robust as it should be: compare to the restriction on contracting out of s.11 repair obligation. e.g. there is nothing quivalent to s.12(1)(b), which of itself is potentially a very significant shortcoming. Would it be better to amend s.12 to also apply to s.8?

    4. Related to 3, there may be circumstances in which it is reasonable to lease property which is not fit for human habitation. Having provison as with s.12 so can be permitted by county court would seem to be desirable. (If so, then extending s.12 to also apply to s.8 would seem sensible).Having possibilty of making exceptions in this way might also encourage more robust enforcement.

    5. The current wording in s.8 is “In a contract to which this section applies….” Will the word ‘contract’ be replaced, and if so, what words will be used (the post says ‘lease/tenancy’, but I suppose this is summary rather than actual wording) n.b.. LTA 1985 does not seem to define ‘contract’ – and I recall in CA case to do with RTB that e.g. misrepresentation act only applies to contracts and the RTB lease is a speciality, so not within that. The concern then is that if the section only applies to a ‘contract’ then this provision can be evaded by having an agreement by deed. (Or there may be existing case law on this in relaiton to s.8 LTA?)

    6. Is something needed to stipulate that this does not affect the application of the Protection from Eviction Act 1977? Is there potential issue in relation to criminal offences under 1977 Act – e.g. is keeping in condition fit for human habitation a ‘service’ that the landlord covenants to provide? (If not, should it be made such in this Bill?)

    • 1. No, it is a covenant, as a continuous obligation over the period of the tenancy – it is set as at grant and thereafter in the Bill
      2. There are no secure tenancies of a fixed term over 7 years, but parity with s.11 is written in to revised s.8 – includes any s.13 lease.
      3. A non-contracting out provision is in the draft bill. S.8 L&T 1985 is wholly revised, which covers a lot of your other points too.
      4. The exclusions from the implied covenant as listed in the post are sufficient. There are no other circumstances we could come up with in which it could be reasonable for a residential property to be unfit for habitation. In fact we could come up with no circumstances in which it would be reasonable. These are effectively force majeur derogations.
      5. ‘Lease’.
      6. i) No, because it doesn’t (S.3 PFEA does not apply to secure or assured tenancies in any event). ii) No, operates in the same way as the s.11 L&TA 1985 obligation.

  8. Giles,

    Thought I’d ask (rather than just do it) whether it’s OK to link this post on social media? I’ve got quite a few friends who would be interested in lobbying their MPs to be present for the second reading of this (19th January is a Friday and not normally a well attended day in the HoC.

  9. Giles, very interesting. I am surveyor and valuer in NW London. MEES will make it an offence to let a property with an energy efficiency rating below band E. I don’t understand the legal points above, in all honesty, although wanted to ask whether your bill dovetails with that legislation? Following your comments on twitter there seems to be this gap between disrepair in a legal sense and from an inspection (ie) surveying point of view. On the odd occasion I inspect a buy to let property they are sometimes in quite an unpleasant state (wall to wall mould, damp, lack of heating) which I would call disrepair although apparently it seems it’s not legal disrepair. Will the bill close that gap?
    Michael

    • On the MEES – excessive cold would fall under the Bill. But MEES is pretty useless, as landlord only has to comply if full grants available for upgrading.

      On the ‘gap’ between what you call disrepair and legal disrepair, yes, the Bill would address exactly that.

  10. In the USA mould is taken seriously, if you Google sick building syndrome you can see how it affects offices, but it is the same for homes too.

    My health has been affected my mould myself from a flat I used to rent, the former Landlord rapidly sold it the moment I left.

    The issues I see are as follows:

    1. There is a culture of “blame the victim” in this country, go to any Landlord forum and you will see Landlords saying that the tenant caused the mould by drying their clothes, by not opening the windows often enough, some even said that by cooking without a window open they caused mould.

    2. Local Authorities do NOTHING about mould, except maybe send the tenant a leaflet, it has to have completely taken hold of a property before they will get involved and even then only if the tenant makes complaints at much higher levels. By this time it is too late and permanent health damage may have been done.

    3. You quoted ‘A Category 1 hazard is a “serious and immediate risk to a person’s health and safety”.’ the question is whether mould is classed as serious never mind immediate. It seems to be that mould should be added to wherever this definition is defined.

    4. I can see Landlords abusing the 24 hours inspection/repair option in cases where there exists a tenant & Landlord dispute and the tenant has changed the locks and is not allowing the Landlord/Agent to carry out viewing because it is over intrusive, done without appointment etc. In these cases the Landlords are currently saying there is an issue with the boiler and using the 24 hour clause to shuffle in potential new tenants for viewings. I would like the legislation to only allow such inspections after the tenant has made the formal report of mould in the property and only then within a reasonable period of time of such reports, not as a special pass to prevent quiet enjoyment of the property.

    In the property where I was affected I found out in the end that it was growing from a poor damp proof course, yes it was a Ground Floor flat, the windows did have a vent which I always kept open and even a gap option whilst remaining locked, neither stopped the mould. Note that properties without such a gap setting cannot be left open by tenants on the ground floor for security reasons. I would like to see Landlords seriously required not only to deal with the mould but the cause of the mould (shite I am sounding like Tony Blair there), but seriously if the problem is due to poor construction, damp proof, vent bricks, vent shafts, poor bathroom vents etc then those need to be rectified and inspected by building control in LA to be fit for purpose.

    I cleaned the mould with thin bleach but I gather that mould requires special treatment and should be sprayed in situ by a professional firm or else the spores just spread into air and resettle.

    I previously lived in a 4 bed house, I had never had mould in that property, so it can hardly be blamed on my lifestyle.

    I am now in social housing, the flat I am in appeared to have mould when I moved in but I was told by HA that it was in fact staining that remained after treatment. I used anti mould paint on all the windows and window borders. I always open the window for 2 hours after a shower and yes I dry clothes every few weeks. Here is no gap setting on the windows.

    In 2 years there has been no mould so far, what this tells me is that it is possible to treat mould caused by previous tenant, I have asked HA to let me know what they used.

    One other factor that I feel is helping the growth of mould in properties that are poorly constructed is tenants not being able to afford to heat the property. Sadly this is the norm for anyone on minimum wage or on benefits, in my opinion energy costs are one of the biggest reasons such people go over budget and lose control of their finances. Tenants can’t switch supplier if they have owed the money for more than 28 days so is it any surprise to see energy companies giving them poor estimates then locking them in.

    One aspect I would NOT like to see is for mould to become a new market for claims companies against Landlords, there is already considerable abuse in this area. I would rather see an obligation on Councils issue an improvement notice upon receipt on a professional report from a company qualified to treat mould obtained by the tenant.

    Thanks Giles for bringing this issue to wider attention.

    • Mould is one of the HHSRS categories.

      The problem is that while councils have the power to enforce (except for council tenants), whether they do or not is frankly a lottery. Some councils have no EHOs at all. There is nothing the tenant can do. It is no use adding any obligation on the council as a tenant could only enforce that by judicial review!

      So, giving the tenant the ability to bring a claim on a breach of an obligation to keep the property fit for habitation is a complementary thing. And it would require the cause of the problem to be rectified.

      I don’t believe there is considerable abuse, though I dislike claims farmers (who are not solicitors) intensely. And if there is, then the claim can be and should be defended, which would drive any such claims company out of the business.

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  12. I understand these changes would provide direct recourse for the tenant against the landlord, whether they be private or social. But would this also compel the landlord to deal with the underlying issue (i.e. the inherent defect), which the current law does not? If so, is this likely to be subject to a ‘reasonable expenditure’ clause?

    • It would require dealing with the underlying issue.

      The cost of works is something for the judge to consider in deciding whether to make an order for works/injunction and the extent of such an order.

      However, in principle, I don’t see why there should be a defence of ‘above reasonable expenditure’. If the property contains a risk to health that would require such substantial works, it is hard to see why it should be permitted to remain open to being tenanted without the works. It would be a license for the worst and most dangerous properties to remain that way and still be let out.

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  14. This is an interesting and informative post. If A Category 1 hazard is a “serious and immediate risk to a person’s health and safety”. No person should have to live in a property that presents such a risk amounting to a Category 1 hazard under section 2 Housing Act 2004. However, the problem is at the ruts when buildings are built or converted.

    I am sure that most of these cases arise where a local authority issued completion certificates despite major breaches in the first place allowing the building to pass planning and building regulations and then covered the problem and, perhaps its own faults, by not revealing to the conveyance solicitors the extent of the breaches during the conveyance searches.

    Common sense suggests that cases like these must be frequent if so many properties are defective. The occupation of dangerous conversions flats unfit for human habitation can only happen if the local local authorities are allowing these properties to be continuously sold or let in buildings with latent and dangerous defects which are not so obvious precisely because they are latent.

    But, on reflection, the problems are essentially concealed in the passage of information and then passed on to oblivious buyers, most of the time leaseholders who may live in the defective property or let out to unaware tenants. Most of the defective homes are usually building with flats or homes converted into flats which, for a prospective buyer is, impossible to inspect fully and properly as it is not feasible to arrange inspection of the internal areas of entire converted building if individual properties are already occupied.

    If a property does not comply with building regulations with latent defect which are not recorded by the local authority the information cannot be passed on to the conveyancers and, in turn, if the defect are seriously difficult to detect (latent) an ordinary basic survey may not be able to detect the structural issues that are the end-result of latent defects in title not recorded when the building passed the initial planning and building regulations.

    The common law principle of caveat emptor (the infamous buyer beware) means that a seller of land is under no duty to disclose material facts to a prospective buyer, let alone to a tenant. However, there is an exception to this principle, namely the fact that latent defects in title, the incumbrances and other adverse title matters which a buyer could not reasonably discover for himself by inspecting the property must be disclosed.

    From a consumers perspective it needs to be noted that in this case scenario not much information is given to allow informed choices for the end-users, namely leaseholders and tenants. This is the one of the key issues.

    The other crucial point is that for every defective home, at some point, the council planning depts would then sign the initial approval of the defective construction (or conversion).

    In this case, it is very difficult to decide who is to blame, the local authorities who did not record the breaches and then failed pass the information about the latent defects to the conveyance solicitors, the solicitors themselves who failed to find out the incumbrances or the structural surveyors acting for the leaseholders?

    This is where the grey areas should be cleared as it is the passage of information that should be simplified and shortened and disclosure of any known defect should be declared up front. Perhaps, each building should have a sort of ‘identity document’, like a passport in which all its history (of serious disrepair) should be recorded and disclosed to the interested parties.

    • Vick. Councils don’t do most completion certificates any more and haven’t for years. So, I’m afraid the conspiracy theory element of the council trying to cover up its own failings by not passing on details of breaches doesn’t hold up.

      And no, the council planning dept doesn’t ‘approve’ defective construction. If it is defective it is (in general) because it has not been built to plan.

      Solicitors aren’t surveyors. It is not for them to ferret out hidden or latent defects.

      Which leaves surveyors- and that is their job, assuming that the purchaser has requested and paid for the right level of survey.

      Any known defect should already be declared upfront on a sale.

      And, for clarity, the Homes (Fitness for Human Habitation) Bill will not apply to leaseholders. Only for tenants for a term of less than 7 years, or periodic.

  15. Dear Giles, your comment are accurately reflecting the reality of all the grey areas which have been left greys for ages, there is no conspiracy theory here, only large areas of legislation which are missing and required to clear up the (sometime huge) gaps to make sure that people live in decent homes in the 21st century.

    Yes, it is true, councils don’t do most completion certificates any more and haven’t for years but they do have the legal responsibility to intervene if a property is indecently fit for human habitation.

    There is no conspiracy theory but it is a matter of fact that the council are often trying to cover up their own failings in the enforcement even when people reports continuously the hazards. Lakanal House and Greenfel tower is the perfect example of people complaints being ignored for decades. https://www.telegraph.co.uk/news/2017/06/15/eight-failures-left-people-grenfell-tower-mercy-inferno/ bearing in mind that these two cases are not even the tip of the iceberg since many other among the most horrific cases of major disrepair and hazards are not given space in the news.

    The council planning dept shouldn’t approve’ defective construction but they do from time to time. If it is defective it is (in general) because it has not been built to plan and major planning breaches can go undected and systematically covered sometimes.

    Solicitors aren’t surveyors and it is not for them to find out hidden or latent defects. This is true, leaving
    surveyors to find out the defects. You rightly mentioned “assuming that the purchaser has requested and paid for the right level of survey.”

    Here there is a potential grey area, how is a family or a person meant to know ‘what is the right level of survey? Who is meant to advise them what is the right level of survey before buying a leasehold which can be highly defective but with latent defects?

    You rightly mentioned “How about cladding on a tower block? Or a design defect leading to serious cold bridging, condensation and mould? -Or heating that is completely inadequate for the space? Or a lack of ventilation? Or doors that aren’t fire safe?”. These are issues that should be detected by the Building Control aren’t they?

    Any known defect should already be declared upfront on a sale. True. But, in practice, how do you inspect internally a building which has already been converted and occupied?

    Leaseholders may already live in properties not fit for human habitation or, possibly, rent out to other tenants who are already living in the premises. How is a new buyer meant to inspect the conversions which are already occupied before the purchase? How much such a survey would cost in the assumption that 10 or 20 premises must be inspected before a full survey is done? And how much such a survey would cost in the unlikely event that it can be arranged?

    You rightly mentioned that the Homes (Fitness for Human Habitation) Bill will not apply to leaseholders. This again, leaves a great and unfair grey area.

    A leaseholder can have lodgers or sub-let the premises, so what about then? Does the home become unfit only then? This is huge grey area, and it appears to me a clear way to pass on the problems on the weak link, namely the leaseholders who will be left with the burden of repairs (if it is possible to repair them) even if the defect are latent from the moment the property was built.

    Why this difference between tenants and leaseholders?

    So should a home that is inherently unfit for human habitation be fit for a leaseholder?

    Aren’t leaseholders people like other type of tenants? Don’t they pay council tax as anyone else?

    If a property has category 1 hazards is unfit for people to leave in and the local authority should intervene. But you are actually right, because if a leaseholder reports category 1 hazards that local authorities do absolutely nothing about as leaseholders are not covered by the legislation.

    Yet, the hazards are there and people can get seriously ill or die for the hazards.

    If a property is unfit for habitation for whatever reason, and this is on the records of the council should inform the buyer/s or the prospective tenants before they move in.

    This is a possible case scenario that shows how the grey areas in the legislation can cause serious issues.

    In buildings converted into flats it is almost impossible or unfeasible to inspect all the converted properties which are already occupied before to buy the individual converted flat and move in. The only information relied on are the data from the seller (who can, often is not always, escape responsibilities relying on the caveat emptor-buyer beware). So the other data on which to rely on are those from the local council.

    From a structural point in many cases it is difficult to establish if there are serious latent defects. For example if there are consistent leaks from the roof often the only way to properly establish the source of the problem is to strip the roof and inspect what there is underneath or alternatively inspect the timbers from inside which would be obviously disruptive to the other leaseholders or tenants already living in the premises and would involve the cost of making good afterwards. These would make a full inspection practically impossible before a purchase pushing the leaseholder into relying on the data from the seller and from the local authority.

    What is these structural problems cannot be detected during the survey because it is not possible to inspect the flats above or those built into the roofs structure without building regulations approval?

    In many cases it is not possible to blame the surveyor since it was not possible to inspect the building fully. If it is not possible to blame the local authority as you mentioned since councils don’t do most completion certificates any more and haven’t for years who bears the responsibility then?

    Once the purchase is done, if a family moves in a converted flat and then finds out that electrical equipment and wiring has been systematically exposed to water flooding (Category hazards 1 for obvious reasons) coming from via the flats above from the roofs and from the pipes’ system (common parts) but the building was converted into flats without planning applications and with no completion certificates in the local council records because it has not been built to plan then it is complex to establish who bears the blame for the lack of a consistent legislation with too many grey areas.

    What is a defective roof and pipes’ system is causing horrific leaks because an entire building was converted into flats some of which were built into the original roof structure without any design or structural calculations in the local authority records?

    Is it the leaseholder who is responsible for internal repairs and failed to find out the defects before moving in or letting the property?
    Is it the freeholder who is responsible for roof repairs?
    What is the building structure is defective because converted flats were built within the original roof structure because because the converted or new building has not been built to plan? Is then the local authority responsible if it failed to pass the information to the leaseholder who purchased the lease?

    There are one million properties unfit for human habitation in our country: https://www.theguardian.com/housing-network/2018/jan/18/fought-hard-homes-fit-for-habitation-bill-heres-why

    If there are so many properties unfit for human habitation there must be reasons, perhaps one of them is the lack of a clear legislation and the gaps aggravated by the lack of law enforcement since there are so many of these cases and the local authorities do not have adequate resources (nor in many cases the willingness) for enforcement.

    • Vick, I’m sorry, this is again such a muddle. I can’t reply in any order. So some points

      Councils don’t have a legal responsibility to intervene if a property is not fit for habitation (unless told to be a magistrate). They have a power to do so, but not an obligation.

      Planning departments rarely approve ‘defective construction’ – that is usually a failure for actual construction to meet planning approval, as you go on to note.

      You don’t have to tell me about Lakanal and Grenfell. And the failings there. You also don’t have to tell me that there was nothing that tenants could do about defects that were not a disrepair issue. That is why I am working with Karen Buck on this Bill.

      But you mix this up with newbuild and leasehold properties.

      So, I would expect someone buying a freehold or leasehold property for hundreds of thousands of pounds to do some research about surveys. It is not a grey area of legislation, it is people being cheapskates.

      We can’t extend the Bill to leases, because they already exist. Implying a term into a 99, 125 or 999 year lease is a wholly different kettle of fish to implying it into a new tenancy. It fundamentally changes the *existing* deal between landlord and leaseholder, so is retrospective legislation, which is never good.

      If a leaseholder has a subtenant, they they will owe their tenant the obligation to keep the property fit for habitation. if they know it isn’t before letting out, then they should not be sub-letting.

      Leaseholders who buy new build have legal recourse for the next 6 years for building defects that make the property unfit for living in – Section 1 Defective Premises Act 1972 – so long as their landlord had the building built for them. If they buy pre-completion of the property, they may have a sale agreement with contractual promises about the final condition of the property from the landlord/builder.

      If it is not a new build (so outside 6 years from completion of the building), then the question is one of the specific lease obligations. Some will cover building defects. Others won’t. In practical legislative terms, there is not a lot that can be done about that for existing leases. In any event, it is likely – depending on lease clauses – that the costs of rectifying defects can and would be passed on to leaseholders as a service charge.

      Building control – for what it is worth (and my view is currently not a lot, as private building control can’t order rectification) doesn’t extend to post construction changes like front doors to flats. Depending on what is demised in the lease, that might not even be the landlord’s responsibility.

      Building regulations and building control need reforming. That is clear.

      On your example of the converted flats with a roof leak, liability would be clear. Sub-tenants could claim against the leaseholder under s.11 Landlord and Tenant Act 1985. The leaseholder could claim against the freeholder under lease repairing obligations. There is no need to even go to planning/building control issues there. Unless the lease is completely screwed up…

      Yes. Local Authorities often do not have the resources for enforcement. Hence this Bill. And yes, building regulations (and enforcement) needs reconsideration. But leaseholders need to take proper account of the relevant lease clauses and have what they are buying properly surveyed. Personally, I think there should be standard statutory lease clauses on latent defects, maintenance and repair. But even if there were, they would not have retrospective effect for existing leases.

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