Fitness for Habitation – now with Govt support.

I am delighted, and delighted for Karen Buck MP, to be able to say that her Homes (Fitness for Human Habitation and Liability for Housing Standards) Bill now has government support as well as that of the Labour opposition. (Previous posts on the then draft Bill are here and here).

The published Bill for Second Reading is here and the estimable Wendy Wilson in the House of Commons Library has prepared a briefing report.

There have been some interesting developments as a result of (rapid but positive) discussions and draftings with the Ministry of Housing, Communities and Local Government (as it is is now).

For example, what would be the new L&TA 1985 section 8A(4)

Section 8 applies to a periodic or secure tenancy that is in existence on the commencement date, but in the case of any such tenancy the covenant implied by that section has effect in the following way—
(a) subsection (1)(a) of that section has effect as if the reference to the later of the times there mentioned were a reference to the time that begins at the end of the period of 12 months beginning with the commencement date, and
(b) subsection (1)(b) of that section has effect only in respect of times falling after the end of that 12 month period.

So, the implied fitness term would apply for new tenancies (of less than 7 years term) after the commencement date, but also apply to any existing periodic tenancies (secure, or assured or statutory periodic) that exist at commencement date with effect a year thereafter.

The ‘matters to which regard should be had’ on deciding fitness, at what would be the new section 10 LTA 1985 are defined as follows:

In section 10 (fitness for human habitation)—
(a)the existing text becomes subsection (1);
(b)in that subsection—
(i)for “house”, in both places where it occurs, substitute “dwelling”;
(ii)after “facilities for preparation and cooking of food and for the disposal of waste water” insert— ““any prescribed hazard;”;”
(c)after that subsection insert—
“(2)In subsection (1) “prescribed hazard” means any matter or circumstance amounting to a hazard for the time being
prescribed in regulations made by the Secretary of State under section 2 of the Housing Act 2004.
(3)The definition of “hazard” in section 2(1) of the Housing Act 2004 applies for the purposes of subsection (2) as though the reference to a potential occupier were omitted.””

So, as things are now, that would be the list of prescribed hazards in Schedule 1 of The Housing Health and Safety Rating System (England) Regulations 2005.

The definition of “hazard” at section 2(1) Housing Act 2004 reads:

“hazard” means any risk of harm to the health or safety of an actual or potential occupier of a dwelling or HMO which arises from a deficiency in the dwelling or HMO or in any building or land in the vicinity (whether the deficiency arises as a result of the construction of any building, an absence of maintenance or repair, or otherwise).

So, that is, in effect, the threshold definition of a hazard to which regard should be had in determining unfitness.

There are landlord access provisions – as per the section 11 regime in effect – on 24 hours written notice, to inspect and/or carry out works.

There is some way to go, and some bits that still need addressing at committee stage, and of course there are still the real risks of getting talked out at second reading – so we still need the 100 MPs to attend, but government support is a very, very welcome development and gives a good following wind for the prospects of the Bill becoming an Act.

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 .

10 Comments

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  2. welcome news but surely a tenant can’t sue a landlord for having children born post let causing an overcrowding hazard?

    • Very unlikely. Nothing in the Operating Guidance for HA 2004 suggests that would be a hazard. It won’t be a breach of Pt 10 HA 1985 since, given the age of the child, it’ll be disregarded. And even if there were a potential claim, what remedy would you have? There is no injunction that could be granted, since no court will grant a mandatory injunction to require a landlord to build an extension. Damages would likely be nominal.

  3. “hazard” means any risk of harm to the health or safety of an actual or potential occupier of a dwelling or HMO which arises from a deficiency in the dwelling or HMO or in any building or land in the vicinity (whether the deficiency arises as a result of the construction of any building, an absence of maintenance or repair, or otherwise).”

    An example of such a hazard would be any lead piping involved in the water supply. Which would apply to about 1/3 of homes in the UK — and in most other civilised places in the world is regarded as a hazard.

    But I guess, despite the reported rigour of the definition it will be interpreted in a way that suits government and Councils, and the mandatory injunctions to repair will be selective and self serving. Is that a type of corruption?

    • Not a third, no. And yes, the landlord would be responsible for any lead plumbing for drinking water inside the property. Lead from water pipes is a specific category of HHSRS hazard. Depending on the nature and extent of the pipes, it may indeed be an actionable hazard. And that will be up to the courts, not government or councils. That is the point.

      How can an order made by the court in such a matter be ‘self serving’? That simply makes no sense.

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  5. The Bill passed its second reading today. Not quite sure if a full hundred MPs were in the Chamber (apart from when the Secretary of State for Justice came in) – quite difficult to tell when watching BBC Parliament and there was no division, but then it doesn’t matter as it passed without a division. So barring a snap general election, this Bill should become an Act in the near future. And there’s no chance of a snap election, right?

  6. What is there to stop a rogue tenant that does not want to be evicted? Deliberately doing damage to make it not ‘fit for habitation’ and then email the landlord/council as a means to prevent eviction? Or seek the help of the no win no fee companies? The latter they stand to gain a lot or if no if not lose nothing? These unintended consequences are quite possible.

    • The Bill makes clear that there is no liability for defects caused by the tenant, or caused by untenant-like behaviour.

      No sensible lawyer would touch such a case, let alone on ‘no win no fee’, because if the claim was defended they would lose and be badly out of pocket. Any claims manager (and I don’t like claims management companies) that tried this would be out of business pretty rapidly.

      If tenants were going to do this to try to avoid eviction, they would be doing it now and get the council EHO in, because the council serving an improvement notice is the only thing that would stop or delay eviction by section 21 notice. The Bill does not add anything to that.

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