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—
- freedom from damp,
- internal arrangement,
- natural lighting,
- 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  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.
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 (save as part of a defence and counterclaim in possession proceedings.)
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).
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.