Fitness for Habitation – a thumbnail guide

As of 20 December 2018, we have the Homes (Fitness for Human Habitation) Act 2018.

This is a quick (very quick) overview of the Act and how it works. For a more detailed version, there may well be a forthcoming book…

The Act amends the Landlord and Tenant Act 1985 sections 8 to 10 and inserts a new s.9A, s.9B and s.9C (as well as some other, small amends elsewhere in the L&TA 1985 that are basically tidying). What Landlord and Tenant Act 1985 sections 8 to 10 will look like when the Act is in force is as here.

When will the Act be in force?

The Act comes into force 3 months from 20 December 2018, so on 20 March 2019 – the commencement date.

It will apply to all new tenancies of a term of less than 7 years (including new periodic tenancies) granted on or after the commencement date – s.9B(1).  (This includes ‘replacement’ tenancies – s.9B(6).)

It will apply to all tenancies that began as a fixed term before the commencement date, but become a periodic tenancy after the commencement date – s.9B(5). So, statutory periodic tenancies arising after an assured shorthold fixed term, or a secure tenancy arising after an Introductory tenancy, or an assured tenancy after a ‘starter’ tenancy.

It will apply to all periodic tenancies in existence on the commencement date 12 months after the commencement date (so 20 March 2020) – s.9B(4), so existing statutory periodic tenancies, secure tenancies, assured tenancies and protected tenancies.

What does it do?

In England, the new s.9A(1) implies into any tenancy agreement a covenant by the landlord that the dwelling:

(a) is fit for human habitation at the time the lease is granted or otherwise created or, if later, at the beginning of the term of the lease, and

(b) will remain fit for human habitation during the term of the lease.

This cannot be avoided or contracted out of by the landlord, nor can any contractual penalty be levied on the tenant for relying on the covenant (s.9A(4)).

How far does the obligation extend?

The obligation extends to the dwelling, and, if the dwelling forms part of a building (a flat in a block, or a room in an HMO), the obligation extends to all parts of the building in which the landlord has an estate or interest (s.9A(6)). This exactly parallels s.11(1A) L&TA 1985. So, where a landlord owns a block of flats, the tenant has a cause of action where unfitness arises from the common parts, or the retained parts (eg, the outside walls, the windows, the roof).

Is the landlord responsible for any unfitness, or to carry out works no matter what?

There are certain exceptions to this obligation under s.9A(2) and s.9A(3).

  • The landlord is not responsible for unfitness caused by the tenant’s failure to behave in a tenant-like manner (s.9A(2)(a)), or that results from the tenant’s breach of covenant (s.9A(3)(a)).
  • The landlord is not obligated to rebuild or reinstate the dwelling in the case of destruction or damage by fire, storm, flood or other inevitable accident.
  • The landlord is not obligated to maintain or repair anything the tenant is entitled to remove from the dwelling.
  • The landlord is not obligated to carry out works or repairs which, if carried out, would put the landlord in breach of any obligation imposed by any enactment (whenever passed or made) – this would include things like breaching planning permission, or listed building consent, or conservation area requirements.
  • Where the needed works require the consent of a third party (eg, a superior landlord or freeholder, a neighbouring leaseholder or owner, or a council) and the landlord has made reasonable endeavours to get that consent, but it has not been given.

What does unfit for habitation involve?

The amended s.10 provides as follows:

In determining for the purposes of this Act whether a house or dwelling is unfit for human habitation, regard shall be had to its condition in respect of the following matters—

  • 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;
  • in relation to a dwelling in England, any prescribed hazard;

and the house or dwelling 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.

(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

This might take a little unpicking.

S.10(2) – this currently means the list of 29 HHSRS hazards (eg, see here), but if the HHSRS is revised, as it seems it might be, it will encompass that. Note that this encompasses both Category 1 and Category 2 hazards.

The definition of ‘hazard’ at Housing Act 2004 s.2(1) as revised by s.10(3) would read:

hazard” means any risk of harm to the health or safety of an actual 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, in deciding whether a property is unfit, regard shall be had to the old s.8 list of factors, but also (not as an additional threshold, but as a factor),whether there is a risk of harm to the health or safety of the occupiers.

The key issue and question for the court’s decision is whether the dwelling is ‘not reasonably suitable for occupation in that condition’.

Is an HHSRS inspection and report necessary to establish unfitness?

No. As set out above, unfitness does not have an HHSRS Category 1 or Category 2 assessment. The issue for the court to decide is simply whether the property is unfit for habitation. In reaching that decision, the court should have regard to the condition of the property in the respect of the s.10 list. That would include, but is certainly not limited to a finding of a category 1 or possibly category 2 hazard under an HHSRS assessment.

Expert evidence from a surveyor could be sufficient, both to establish unfitness and the remedy.

In some circumstances, it would be quite possible for the court to make a a finding of unfitness on very simple non-expert evidence – for instance of lack of heating.

What about notice and access?

S.9A(7) and (8) imply a covenant by the tenant that the landlord, or a person authorised by the landlord may enter the dwelling for the purpose of viewing its condition and state of repair, at reasonable hours of the day, on 24 hours written notice.

There are no express provisions in the Act on notice to the landlord. Neither are there in s.11 – the existing disrepair provision. We confidently expect that the same common law notice requirements will apply as with s.11 and s.11(1A).

For any unfitness within the dwelling (or to a house, if the whole house let), the landlord’s liability to the tenant will not start until the landlord has had notice of the unfitness (from the tenant or third party) and the landlord has had a reasonable period to rectify the unfitness.

For any unfitness arising from the landlord’s retained parts (common parts or exterior of a building of which the dwelling is part), the landlord will be deemed to be on notice as soon as the unfitness arises, and liable after a reasonable time to remedy the defects. (For more on this, see the Supreme Court in  Edwards v Kumarasamy [2016] UKSC 40 – our note ).

We can’t see any liability arising for hazards that were not known to be such, prior to their identification as a risk. So, no retrospective liability, for example, for cladding which has been reclassified from safe to hazardous. That said, liability would of course arise from the time the hazard was known.

What of damages, or a pre action protocol?

The Act does not – indeed cannot – specify such things. However, we anticipate that:

i) the existing housing disrepair pre-action protocol will be amended to include Fitness claims. In any event, it provides a useful and practical model for such claims.

ii) General damages will be assessed on a ‘loss of amenity’ basis, which should broadly parallel the assessement of quantum in disrepair claims.

Venue

Unfitness claims are in the courts. Primarily the County Court, but perhaps exceptionally the High Court. The reason for this is simple. The First Tier Tribunal cannot make injunction or works orders. Nor can the FTT make enforceable judgments on damages. And, of course, there is no legal aid available for the Tribunal, nor can conditional fee agreements work, as there are no costs awards in the FTT.

Funding for claims

Legal aid will be available on exactly the same basis as for disrepair claims – limited to claims to remedy issues causing a serious risk to health and/or safety of the occupiers. Legal aid will not extend to a damages claim or remedying lesser issues.

Conditional fee agreements (‘no win no fee’) will be available for cases where they meet the solicitors’ criteria.

(Don’t go to claims management companies. Claims farmers are just an extra cost to the tenant and add no value at all).

Finally

This is a brief overview. There will be a lot to explore in legal argument and a lot to be decided by the courts in the future. But there is a whole new right for tenants of bad landlords, and that alone should help improve conditions.

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 .

41 Comments

  1. this seems likely to lead to more homeless applications on the basis of unreasonable to occupy. how should these be dealt with?

  2. Brilliant brief guide. Just what I needed as a Citizens Advice advisor. Thank you and happy Christmas.

  3. thank you for your excellent guide.

    I think that there is room for misunderstanding in the following paragraph,
    “It will apply to all tenancies that began as a fixed term before the commencement date, but become a periodic tenancy after the commencement date – s.9B(5). So, statutory periodic tenancies arising after an assured shorthold fixed term, or a secure tenancy arising after an Introductory tenancy, or an assured tenancy after a ‘starter’ tenancy.”

    9B(5) applies where a statutory or contractual periodic or statutory fixed term arises after a fixed term granted before commencement expires eg under s86D HA85
    9B(4) applies where a periodic is granted or has arisen before commencement. this includes where a periodic introductory tenancy granted before commencement becomes a secure tenancy or periodic starter tenancy granted before commencement becomes a nonshorthold assured tenancy. It is the same tenancy — only the label has changed. The change of label has no impact on the application of the new act.

    merry xmas
    kjetilniki

    • On ‘starter’ tenancies, it depends how the housing association has done it. A 12 month AST is often used – on the change to an assured periodic (or a longer fixed term) s.9B(5) bites. In fact, for ‘starter’ tenancies, there pretty much has to be a change of tenancy.

      On Introductory tenancies, I’d say it was arguable – in the words of HA 1996, it ceases to be an introductory tenancy and becomes a secure tenancy. The tenure changes too. This was also the view of MHCLG.

      The actual wording of s.9B(5) certainly catches Introductory to secure –

      (5) Section 9A applies to a periodic or secure tenancy that comes into existence after the commencement date on expiry of a term of a lease granted before that date.

      An Introductory tenancy is not a secure tenancy, the secure tenancy comes into existence at the end of the Introductory term.

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  5. I’ve read this post with interest, thank you. I’ve got two questions that I don’t seem to be able to answer myself (I’ve read the Act) and I wonder whether you could help at all?:

    1. What about contractual periodic ASTs that arise from the same contract that the original fixed-term straight after its expiry? We see more and more of them around because landlords want to protect themselves against liability for council tax if the tenant leaves…

    The Act speaks of ‘periodic’ tenancies without distinguishing between contractual and statutory periodic tenancies and makes references to renewal/replacement tenancies. So, where a tenancy is ‘for an initial period of 6 months and monthly periodic thereafter’, what in your opinion would happen if the fixed-term expires in April 2019? I’m slightly confused, because in this case both the fixed-term and the periodic phase are one tenancy (not a replacement/renewal), however the Act states that periodic tenancies arising after the commencement date will be covered straight away…

    2. It is Landlord and tenant Act 1985 that is amended, so I understand the provisions don’t apply to genuine licences. Would non-statutory tenants be covered (e.g. someone has a tenancy by virtue of exclusive possession of a flat for a term at a rent (Street v Mountford) but is excluded from having an assured/AST tenancy under HA’88, because their landlord lives upstairs and it’s a house converted into two self-contained flats, so the landlord is classed as resident and the tenant only has PEA’77 protection as a result?

    Thank you in advance for your guidance!

    • 1. S.9B(5) should catch a tenancy granted for a fixed term before the commencement date but which then proceeds as a contractual periodic, I think.

      2, It covers any tenancy of a term of less than 7 years, so would include residential contractual tenancies – s.9B(1).

  6. I might have answered question 1 myself, apologies. s9A(5) suggests contractual periodic tenancies will be covered if the fixed-term expires after the commencement date… Am I right? ;)

  7. I do not understand why section 9B(3) – which says that section 9A does not apply to a lease granted … before the commencement date – is expressed to be subject to sections 9B(4), (5) and (6), when 9B(5) and (6) do not contradict the main statement. They relate to leases that start AFTER the commencement date, so no carve-out is necessary. Unless somehow section 9B(6) – which is not well drafted – is intended to make the original (pre-commencement date) lease subject to section 9A, on the basis of 9B(6)(a) on its own. I don’t believe that that was the intention, but I’m pretty sure there will need to be a court decision to establish that.

    • (5) and (6) both involve situations where the tenant has an existing tenancy at the commencement date. As, for example, a statutory periodic being a ‘new’ tenancy is a matter of case law at present, it makes sense for the position to be set out in legislation. As for replacement tenancies, it is amazing the number of people who still think it is an extension of the existing tenancy…

      (6) is perfectly clear. (a) has to be read conjunctively with (b).

  8. Thank you so much for your help S9A(2) (a) is an equitable interest for the landlord , the tenant have been living in my premises, of course they must repair something caused from them . We have an Energy Performance Certificate within 10 years after that I must renew EPC (state of the premises) All your current law informations is very helpful , without your information, I will have been suffering from the tenants I appreciate you Sir!

  9. Has any provision been created for an injunction/works order from CC being a defence against S21 eviction? I wondered whether the retaliatory eviction defence had been extended to cover the new legislative changes – it would be interesting as with LA’s being so restricted with enforcement powers, improvement notices are rarely issued,

    • There is as yet no retaliatory eviction provision. It was beyond what we could do in a private members bill and, even in the unlikely event that the Govt had supported such a move, would have delayed the Bill by a very long time. The retaliatory eviction provisions need revisiting as a whole, but that really is something the Govt need to do.

  10. Excellent summary Giles. I imagine we can expect future traffic through the courts around the qualifying definition in s.10 ;

    “the house or dwelling 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.”

    • Yes indeed, though there are old s.8 cases and some s.1 Defective Premises Act 1972 cases which give a framework for ‘fitness’ matters. Book coming soon…

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  12. Great piece so clear and relates to my area of work at housing association. What are the main changes from how things are now with disrepair and environmental health claims against landlords?

    • Well as the post says, tenants will be able to bring claims over property conditions, even when they aren’t caused by disrepair. Eg condensation mould due to poor design (no ventilation, no insulation to external walls, cold bridging and so on), lack of heating, or inadequate heating for the space, fire safety risks to the building, and so on.

      It differs from the Environmental Protection Act as the claim can address the common parts of a building, for a flat or room, because it is a civil claim, not a private prosecution, and because it doesn’t need the continuing presence of a statutory nuisance (so just wiping down the mould won’t be enough to stop a claim, unlike an EPA prosecution).

      I expect the process to be almost identical to a disrepair claim, in terms of pre-action protocol, civil procedure, allocation to track, etc..

  13. Dear Mr. Giles!

    Thank You for working on FfH Bill, which was enacted on 20/12/2018 :) My Christmas present. I am grateful to Ms. Buck and to all those who pushed it through.
    You all should feel very proud of this Act.
    It is an absolutely essential piece of legislature for private tenants like me.
    I had 2 housing people in my decrepit flat on December 20th while Homes Bill was given royal assent. When I found out a day later I was jumping for joy. I dared not believe it until I saw it on House of Lords’ site. It was the best gift!
    In all substance, rogue private sector landlords are greedy evil slum toadies. Profit at any cost. The high price is paid by tenants’ with detriment to their safety and overall well-being.
    I have been fighting (in litigation) with my landlord and his managing vulture (estate agent). It has been a year of assessments by Contractors, Surveyors and even EH inspectors (yes, you are right on the money that councils in London are utterly useless, lazy, inept against rogue landlords).
    LA of Harrow are such an example of incompetence, corruption, an abject unmitigated FIASCO. They are abysmally ineffective in every department.
    They failed to enforce Hazard Notice Sec. 28. An Improvement Notice Sec.11 would be the correct procedure as I have a flat with multiple Category 1 HHSRS hazards.
    Harrow Council are corrupt and incompetent run by pompous nincompoops. I contacted all my local councillors both Tory and Labour. I spoke to Nick Hurd’s office. Crickets chirping! These nitwits pose for PR photos.
    I have defended and represented myself in court. I did my case law research and filled out forms. I also drafted Skeleton Arguments myself. It would be an honour if you could look at my Skeletons. I had a crash course on PDR along with CPR…
    Excellent point about Sec.21 retaliatory action versus a tenant with a damning Hazard/Improvement Notice served by EH.
    My flat is unfit for habitation.
    I asked a Damp Surveyor to assess it and he issued a damning report.
    Of course my landlord blamed me for a 120 year old Victorian ruin which he turned into a damp slum. My landlord is a multi-millionare and a Scrooge. His slimy estate agent eats breakfast with a corkscrew.
    I was tricked into this tenancy by fraud and false representation. There is severe Damp, black mould, wet rot and rats but no central heating.
    However, since the case started I have gotten my EPC (G!), HAN and Damp Surveyor’s report. I did my homework!
    This FfH Act was the missing puzzle piece.
    My question to you would be:
    Bringing action using Homes FfHH Act,
    do I adduce Negligence & Breach of Duty of Care? (Res Ipsa Loquitur doctrine) I developed asthma and got other injuries.
    Am I able to claim Damages and also rent repayment of 12 months?
    My Deposit (x 3) was never protected!
    I eagerly await your reply.

    Sincerely Yours,
    Ms. M. Phillips

    • Hi. The Act will not apply to your tenancy until:
      i) If you are currently on a fixed term and will be till after 20 March 2019, when there is a new fixed term granted, or your tenancy becomes a statutory periodic at the end of the fixed term.
      ii) If you are currently on a statutory periodic tenancy, after 1 year – so 20 March 2020.

      A claim for breach of s.9A Landlord and Tenant Act 1985 (which is what it will be) is a claim for breach of tenancy, exactly like a disrepair claim. Beyond that, I can’t advise on specific matters, I’m afraid.

      One can only apply for a rent repayment order where the landlord has failed to comply with an Improvement Notice or an Emergency Prohibition Order.

  14. Addendum:
    Does one file a Disrepair form for unfit for habitation claim?
    Can one go to file it at a CC of their choice?

  15. Your information relating to Nearly Legal is very helpful to me Please send your information regularly (Nearly Legal in my email box I would appreciate for your help Thank you so much

  16. Noise Nuisance – does the new legislation place more obligations potentially on the landlord to address noise transference. Social landlords receive many such complaints. The HHSRS refers to Noise including “threats to physical and mental health from exposure to noise in the home caused by a lack of sufficient sound insulation. It does not cover unreasonable noisy behaviour of neighbours (domestic or commercial)”. Thanks.

    • Pretty much along the lines of the HHSRS, I’d expect – ie, a defect or lack in the design or structure in the dwelling giving rise to noise. I can’t see how it could extend to the unreasonable conduct of others, as the usual rule that a landlord is not liable for the conduct of their tenants (save where endorsed or encouraged) would apply.

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  18. Excellent article!

    I am struggling to understand section 9B and I would be very grateful if you could please confirm the following:
    Section 9B(1) (20 March 2019) will apply to the following tenancies:

    -existing assured tenancy that was granted for 3 years in 2018

    -new assured tenancy that will be granted for 3 years in February 2019

    -assured tenancy to be granted in April 2019 for 3 years

    If there is a current periodic tenancy (either contractual or statutory), would section 9B(4) apply?

    Thank you very much in advance!

    • Existing assured tenancy with 3 year fixed term for 3 years from 2018 – s.9A will not apply during the fixed term of this tenancy. It will apply to any subsequent periodic or replacement tenancy.
      New assured 3 year fixed term from Feb 2019 – ditto.
      Assured tenancy for 3 years from April 2019, s.9A will apply from the start of the tenancy.
      Current periodic tenancy existing at 20 March 2019 – s.9A will apply after 12 months, so from 20 March 2020.

  19. That is very helpful, thank you! So what happens with existing assured tenancies or tenancies that will be granted before the commencement date? The Act will apply to them after 12 months, on 20 March 2020? Thank you once again!

    • As per the post – it really is set out there:

      All periodic tenancies that exist on 20 March 2019 will be subject to s.9A from 20 March 2020.
      Any pre-existing fixed term tenancies will not have s.9A apply until either a periodic tenancy comes into existence at the end of the fixed term (eg a statutory periodic, or a secure tenancy following an Introductory tenancy, or an assured perioidc tenancy is granted after a 1 year ‘starter’ tenancy), or a further fixed term tenancy is granted after 20 March 2019.

  20. Will the Act apply to Council tenancies as well as Housing Association and private tenancies?

  21. Thank you so much Sir! Your advice is very helpful for us I would like appreciate to you Sir!
    I am a landlord of the whole building in the Battersea , the two stories flats is above my commercial tenant shop , according to the lease is made on 25th November 1999 the yearly rent only 100 pounds (ground rent ) from 1999 to 2019 I am a subsequent landlord

    The rent provision said that (Rent) means the yearly rent of 100 pounds for the first twenty years of the Term increasing by 100 pound each succeeding tweenty years of the term and proportionately for a shorter period PROVIDED that if and so long as any yearly rent increase would result in the tenancy hereby created becoming subject to any restriction upon or prohibition against the taking of a premium on an assignment the rent payable shall remain or become the highest amount which would not incur such statutory restriction or prohibition and so that upon any subsequent modification of such statutory restriction the yearly rent shall forthwith increase to the highest figure which would otherwise be payable from time to time hereunder and which would not incur such modifies restriction or prohibition

    I am thinking that this provision is an unreasonable reasons . the lease is made in 1999 now is the tweenty years now I would like make a new lease in order to increase the current ground rent in the London area I named in my title on 27 May 2003 and registered with Land Registry – as a proprietor register

    Could you please help me how to change this provision in order to increase a new ground rent in London area (from 1500 to 1800 yearly) and I am very happy to pay your fees when the issues will be resolved by you Thank you Sir

    Lai Tran –

    • Hi. As it says on the comment form, we can’t offer advice on individual issues.

      Nor can we take instructions through this site. I would note however, that you can’t just unilaterally change a lease, or impose a new one.

  22. Am I right in thinking that this legislation doesn’t really enhance a tenant’s rights as compared with what is already provided for in S.11 LTA 1985, save for where defects are caused by design defects? I.e. tenants may have a claim under this legislation even if the landlord has a defence under S.11 due to an inherent design defect?

    • Not quite right, no. What is covered by the Act is effectively any defect which presents a risk to health and safety. This would include design or build defects, like no heating provision or inadequate ventilation, or cold bridging giving rise to condensation and mould. But it would also include, for example, fire safety issues such as the material of the building, or substandard internal fire doors to the common parts. Also pest infestation – certainly at the start of the tenancy. These are all significant issues.

      Disrepair may give rise to unfitness, so there is an overlap with s.11, but not all disrepair will make a property unfit, so they are distinct obligations.

  23. Hi,
    I would like to ask your opinion on the section s.9A(2)(a) of a new act ‘he landlord is not responsible for unfitness caused by the tenant’s failure to behave in a tenant-like manner’. Tenant like manner seems really vague, what sort of things will this include?

    Best wishes,

    Dan

    • Warren v Keen [1954] 1 Q.B. 15 – Denning LJ
      “what does “to use the premises in a tenantlike manner” mean? It can, I think, best be shown by some illustrations. The tenant must take proper care of the place. He must, if he is going away for the winter, turn off the water and empty the boiler. He must clean the chimneys, when necessary, and also the windows. He must mend the electric light when it fuses. He must unstop the sink when it is blocked by his waste. In short, he must do the little jobs about the place which a reasonable tenant would do. In addition, he must, of course, not damage the house, wilfully or negligently; and he must see that his family and guests do not damage it: and if they do, he must repair it.”

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