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 (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).

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 .

67 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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  25. Thank you so much for all your advices relating to the landlord and tenants ( Warren v Keen 1954 )
    The tenants are confusing the guidance of How to rent in the UK the provision of carry out most repair if something is not working , report it to the landlord – the landlord is not responsible something in which causing from tenant if the landlord repairs something causing from the tenant there will be a risk to their deposit the landlord can deduct from their deposit

    Lai Tran Thank you Sir

  26. My council refuse to help me. I have excessive heat gain and lack of ventilation, they have medical evidence from a consultant and an independent expert engineers report detailing how the MVHR system and it’s ventilation could cool my flat. They only agree to solar film and won’t look at lobby lack of ventilation. I have window surface temperatures of 50°C & room temps of 25-28.5 now. In the summer it will be up to 40. They claim I could use humidifiers, leave all the windows and balcony door open all the time, and put all my meds in the fridge, I’d need a 2nd fridge my repeat prescriptions are a carrier bag. I have anti-rejection cornea transplant drops which cannot be kept in the fridge. All my meds will be compromised and my ocular health is at risk. They have treated me with contempt. I referred to this Act, they’re not phased they can do what they like. So they will force me to move rather than pay for the adjustments and tell me it’s my choice. And they always say kind regards as they bureaucratically say fuck you

    • If you are a council tenant currently, the Act will apply for you from 20 March 2020. If you are a leaseholder, I’m afraid it won’t apply. Excessive heat could indeed fall under the Act.

    • Until the Act applies to you – 20 March 2020 – there is nothing much that a solicitor could do. Until then, I can only suggest going through the complaints process and then to the Housing Ombudsman.

  27. Yes I have tried stage 2, but they’re determined to force me to move instead of fixing it so I don’t do a viewing they will say I’ve refused and then they want an immediate decision. They want me out to shut me up and I can’t stall till 20th March

  28. You mean that although it says 20th March 2019 that nothing can be done for a year?
    They’re telling me that because it’s a new building their hands are tied for the 12 months defect liability so they can’t do anything and I can’t even pay myself if contractors don’t consent. So because of the councils inability to get contractors to fix their mess (which my council approved on final inspection) I’m expected to just move which is really hard after having had major surgery, I’m disabled.

    • The Act won’t apply to existing periodic tenants (including secure tenants) until 20 March 2020. It applies to new tenancies beginning on or after 20 March 2019 from the start.

  29. Do you think this will make a difference to private tenants and not lead to them being evicted? I currently rent a property in London which should not have been let as it does not meet EPC standards, however I have a dishonest EPC certificate which claims it does. The property is solid wall, has single glazing and the only heating is electric convection/fan heaters. Unsurprisingly, it is cold and mouldy. As a bonus, it also does not have a fire door. Could this legislation help with these things?

    • Hi

      The Act could help with these things, although it will not apply to existing tenancies until either a new fixed term is granted after 20 March 2019, or the tenancy becomes a periodic tenancy after 20 March 2019. If the tenancy is already periodic, the Act will not apply till 20 March 2020.

      Retaliatory eviction is not something we could deal with in the Act. It is something that the government need to address, either by changing the retalitory eviction provisions (which are mostly useless), or by changing the minimum term of a tenancy.

      For now, I’d suggest trying to get the local council environmental health to inspect, and, if needed, serve an improvement notice.

  30. Would the Act apply to premises that are occupied by so called “property guardians” who allegedly reside under the terms of a “licence” as opposed to a tenancy

  31. Hi. What does facilities for preparation and
    cooking of food mean in reality in terms of what needs to be supplied?

    • That there have to be adequate facilities to enable the occupiers to safely prepare and cook food (sufficient for the number and needs of the occupiers).

      The HHSRS operating guidance says, variously:

      Areas of the dwelling intended for personal washing, sanitation or for food storage, preparation and cooking should be capable of being maintained in a hygienic condition.

      Kitchen facilities should be in a properly designed room or area, laid out so as to make safe and hygienic preparation and cooking of food easy, so reducing the risk of food poisoning and promoting safe practice.

      16.11 Damp affected surfaces may degrade and become friable, and may also support growth of micro-organisms, presenting a risk of contamination of food. Humid conditions can cause food to decay more quickly. The surface of the floor to the kitchen area should be reasonably smooth and impervious and capable of being readily cleansed and maintained in a hygienic condition. Corners and junctions should be sealed and covered to avoid uncleanable junctions. Wall surfaces should be smooth and capable of being readily cleansed. Surfaces immediately adjacent to cookers, sinks, drainers and worktops should be of an impervious finish and the joint between any sink, drainer or worktop and the adjacent wall should be sealed and watertight.

      16.12 The layout and relationship of facilities should ease the stages of preparation, cooking and serving. There should be adequate and appropriate lighting to the kitchen area and particularly over the facilities, and there should be appropriate means of ventilation of the whole of the kitchen area and in particular the cooking area.

      16.13 The food storage facilities should enable cooked and uncooked food to be kept separate to prevent cross contamination. These facilities should be of adequate size for the size of dwelling and should be finished internally and externally with smooth impervious surfaces capable of being readily cleansed and maintained in a hygienic condition.

      16.14 The sink should be of an adequate size, and have a drainer which drains into the sink, or, as an alternative, a dual sink. It should be strong enough to safely take the weight of the water and equipment and utensils. The surface of the drainer and the internal surface of the sink should be smooth, impervious and capable of being readily cleansed and maintained in a hygienic condition.

      16.15 A supply of cold water is necessary for food washing and preparation. For washing-up of equipment and utensils, and for cleaning worktops and cookers, there should be a supply of hot water. The sink should be properly connected to pipes which safely carry away waste water to discharge it into a drainage system.

      16.16 Worktops should be of adequate size for all the equipment and other food preparation activities and securely fixed. The surface of a worktop should be smooth, impervious and capable of being readily cleansed and maintained in a hygienic condition. There should be sufficient appropriate power sockets associated with the worktop(s) (as well as those provided for equipment such as refrigerators and washing machines).

      16.17 There should be space for the installation of cooking facilities sufficient to take facilities of adequate size for the household, with appropriate connections for fuel.

      16.18 In multi-occupied premises where facilities are shared, a degree of lack of communication between individuals from different households is likely. This can lead to conditions where there is an increased risk of food poisoning, particularly where there is confusion over responsibility for cleaning. Separate food storage, preparation and cooking facilities for different households can help reduce the risk of food poisoning and also reduce stress and anxiety associated with shared use.

  32. Relationship between s 4 DPA 1972 and s 9A

    Will a non-tenant occupier/visitor be able to found a claim under s 4 on the basis of a breach of s 9A? ie does the s 9A covenant amount to an obligation to the tenant for the “maintenance or repair” of the premises? It strikes me that it probably does in that, even though s 9A does not expressly refer to an obligation to maintain or repair, any breach could normally only be remedied by one or the other. However, I would be interested in your view on this.

    • That is an interesting point. Initial thought is that it might. I need to consider that further, and it would mean precedent case law being disposed of.

  33. There is a huge concern amongst landlords about condensation. Am I right in thinking that condensation is only caught in the same way that it is caught under S.11? I.e. if it is condensation caused by a structural defect the landlord is liable, but if it is caused by tenant lifestyle it is not a S.11 defect and would fall within one of the exemptions under the HFFHA?

    • There are two relevant exceptions:
      s.9A(2) The implied covenant is not to be taken as requiring the lessor—
      (a) to carry out works or repairs for which the lessee is liable by virtue of—
      (i) the duty of the lessee to use the premises in a tenant-like manner, or
      (ii) an express covenant of the lessee of substantially the same effect as that duty;

      And

      S.9A(3) The implied covenant is also not to be taken as imposing on the lessor any liability in respect of the dwelling being unfit for human habitation if the unfitness is wholly or mainly attributable to—
      (a) the lessee’s own breach of covenant

      As ‘use in a tenant-like manner’ is effectively an implied covenant by the tenant, even if not express in the agreement, arguable that failure to use in a tenant-like manner is a breach of covenant, so if that is giving rise to the condensation, then landlord not liable.

      But ’caused by tenant lifestyle’ isn’t going to work as a blanket term. It would have to be shown that the ‘lifestyle’ was such as to amount to a breach of covenant. (Ie, of tenant-like manner). There will be arguments here – what steps, for example, would it be reasonable for a tenant to take under the ‘use in a tenant-like manner’? What steps would exceed that and be placing unreasonable requirements on the tenant?

      After all, if a dwelling requires the tenant to act in a way which would not be a reasonable part of tenant-like use to avoid condesnation and mould, then there is a problem with the dwelling itself…

    • Depends what you mean by retrospective effect. It won’t apply to conditions before section 9A comes to apply to a tenancy, so no damages claim for fitness for conditions before then.

      But it will apply to pre-existing periodic tenancies in March 2020, so does change existing tenancy terms.

  34. Thank you so much Sir. without your information I will be suffered from my tenants I am grateful your lawful contributions to people those who are needing your help . I had spent so much money for an inevitable accidents during their tenancy because I do not know about the inevitable accident (Burglary in my rental premises where the tenant have been living there I must spent the amount of 2,500 pound for repairing the criminal damages . i am learning from your broad law knowledge and my law materials – The Landlord and Tenant Law (2014-2016 edition I think I will order a new book (Landlord and Tenant) 2019-2020 to understand more about the current new law . In fact, the tenants are bullying me I am always keep silent . because of my benefits The Landlord and Tenant law is not my main subject Again Thank you Sir

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