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 .

19 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.

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