Sarah Cummins and Robin Stewart

Harvey v Heaver [2026] EWHC 1671 (KB)

This is the first binding higher court judgment on the meaning of unfitness for human habitation in sections 9A and 10 of the Landlord and Tenant Act 1985 as amended by the Homes (Fitness for Human Habitation) Act 2018. The case is therefore important – but also procedurally a strikingly odd bit of housing litigation, involving a three-day hearing in the High Court to determine only whether or not an order for repairs and other works should be made against the landlord.

Of particular note is the court’s willingness to apply older authorities including Summers v Salford Corporation [1942] AC 283 (HL) and Rendlesham Estates v Barr (2014) EWHC 3968 TCC to assist with the meaning of fitness for human habitation. This follows the approach seen in Jillians v Red Kite Community Housing (Giles’ note here).

The Claim

Tenants, Mr and Mrs Heaver, and their four children brought a claim against their landlord in the High Court for breach of s11 and s9A of the Landlord and Tenant Act 1985 seeking an order for specific performance for works to be carried out, a decant and damages.

The Court ruled that it would only deal with the present and prospective fitness for human habitation of the property under s9A by reference to the uncontested evidence of the parties’ single joint expert. All other issues, including historic disrepair and historic fitness breaches were remitted to the County Court together with personal injury and Equality Act claims.

The property was a four-bedroom, mid-19th century house forming part of a former farm complex situated near Chichester. The Claimants had occupied the property on a series of assured shorthold tenancies since September 2020. It was not disputed that the s9A implied covenant applied to their tenancies throughout their occupation.

The single joint expert made findings in relation to:

1.Damp and mould in every habitable room and in both roof spaces attributable to a combination of the limited thermal performance of the construction and active moisture ingress through the chimneys, external walls and roof. The Court was satisfied that the damp and mould were caused by defects or disrepair that were the landlord’s responsibility and was so widespread as to present a risk to the health, including the mental health, of any occupant of the property regardless of vulnerability. The four children were at particular risk due to their age.

2. Excess Cold – the expert made no specific finding on excess cold but did find ‘reduced thermal performance’. The Court found that this together with the property’s EPC rating of E (the lowest rating at which a residential property can generally be let) gave rise to a risk that the property would be excessively cold in winter.

3. Asbestos – the ceiling in Bedroom 1 was cracked, deflected and leaking and was covered in textured coating which contained asbestos (chrysotile, or white asbestos). While the expert had not carried out his own asbestos survey, he relied on an earlier survey obtained by the Claimant. This was not disputed and the Court admitted it in evidence. The Court found that the asbestos coating presented a risk to the health of the tenants, particularly the children, as it was damaged and on a ceiling that was cracked, deflected and bulging, had water penetrating it and was at risk of collapse.

4. Electrical installations – the expert noted the property had an EICR with a rating of ‘Unsatisfactory’ with exposed live conductors and an uncovered junction box. However, these issues had been resolved before the hearing.

5. Rodent infestation – the Court accepted the expert’s evidence of an active rodent infestation at the property.

6. Septic tank – the vent pipe to the tank was damaged. The expert advised further specialist investigations by a suitably qualified drainage engineer.

7. Defective heating system – the expert made two findings accepted by the Court relating to defects to the oil supply serving the oil-fired central heating system and defects to a wood burning stove in the living room (but noting the Court could not resolve the dispute between the parties about whether this was a landlord or tenant fitting).

8. Garden fencing – the expert found defects in the garden fence but noted maintenance of the garden was the tenant’s responsibility in the tenancy agreement.

Works were estimated to cost £39,150 excluding VAT and to take 4-6 weeks to complete.

While there were other expert reports the Court decided it did not need to take account of these, nor the tenants’ evidence, to make a finding on the current fitness of the property.

With regards to the damp and mould, the Court was referred to the recently updated HHSRS Operating Guidance, statutory guidance to which local authorities must have regard when exercising their functions under the Housing Act 2004, and the Government’s Damp and Mould Guidance (‘Understanding and addressing the health risks of damp and mould in the home’), guidance which a local authority or court is not required to have regard but which the judge described as ‘relevant and helpful.’

The High Court judgment

Having set out the material findings of the expert, the Court turned to the legal framework: the implied covenant of fitness for human habitation in sections 9A and 10 of LTA 1985 and the test of fitness. Noting the absence of any authoritative interpretation of the revised test in s10 (as amended by the 2018 Act), the Court undertook a detailed review of the legislative history of fitness for human habitation, examining four statutory contexts where it has developed: the private law implied covenant of fitness in low-rent lettings, the public law protection of local authority powers to enforce housing standards (now contained in the Housing Act 2004), the duty of builders under the Defective Premises Act 1972 and the statutory nuisance regime under the Environmental Protection Act 1990.

As to the construction of sections 9A and 10 and the meaning of the test for fitness for human habitation, the Court drew the following conclusions:

54. First, in assessing ‘fitness’ the same relevant matters (‘repair’, ‘stability’, ‘freedom from damp’ etc.) and test (‘so far defective in one or more of those matters that it is not reasonably suitable for occupation in that condition’) continue to apply as before the amendments, so that a property that was ‘unfit’ before would also be ‘unfit’ after. The core test in section 10 is carried over unchanged, and the older authorities on its meaning remain a reliable guide. In particular, Summers and Rendlesham remain good authority that fitness has two distinct components: premises may be not be fit if, first, the living conditions present a risk to the health or safety of the occupiers; and, second, the living conditions have a sufficiently negative effect on the occupier’s comfort and convenience, even if there is no risk to health or safety. Nothing in the 2018 amendments displace that conclusion.

55.Second, the addition of ‘any prescribed hazard’ in section 10(1) extends the matters that are relevant to the issue of fitness. Although there is clearly considerable overlap with the existing matters (e.g ‘freedom from damp’ and ‘Damp and mould growth’), the addition addresses concerns that the list of ‘matters’ in section 10 was incomplete.

56. Third, by including in the list of relevant factors ‘any prescribed hazard’ by reference to the terms defined in the HA 2004, there is a clear statutory intention to bring about a degree of convergence between the private law and the public law means of protecting tenants from substandard rented accommodation. ‘Prescribed hazard’ is defined by reference to the list of 21 ‘matters and circumstances’ in the HHSRS Regulations (by virtue of section 10(2)) and the definition of ‘hazard’ is to be found in section 2(1) of the HA 2004 (section 10(3)). If any of those 21 ‘matters and circumstances’ exist and they present ‘any risk of harm’ within the meaning of the HA s 2(1) (above, paragraph 48), including temporary harm and harm to mental health, they are both a ‘hazard’ for the purposes of section 2(1) of the HA 2004 and a ‘prescribed hazard’ within the meaning of section 10(1) LTA 1985, as amended. Any such ‘prescribed hazard’ is relevant to the court’s assessment of whether the property is ‘so far defective in one or more of those matters that it is not reasonably suitable for occupation in that condition’ and therefore unfit for human habitation under section 10(1).

57. Fourth, the convergence between the public and private law protection is only partial. The ‘fit for human habitation’ standard is retained in assessing compliance with the implied covenant but plays no part in the exercise of local authority powers since the HA 2004 came into force. Moreover, unlike the local authority when exercising its functions under the HA 2004 (above, paragraph 46), the court’s power under section 10 does not depend upon a finding that there is a ‘category 1’ or ‘category 2’ hazard. Indeed, as Summers and Rendlesham make clear, a finding of unfitness can be made even if there is no risk of harm (i.e. a hazard), if by reason of one of the relevant matters (including ‘freedom from damp’) the dwelling is ‘not capable of occupation for a reasonable period … without undue inconvenience or discomfort’ to the occupants. That said, a local authority assessment of a category 1 or category 2 hazard would be strong evidence of unfitness. I agree with the conclusion of HHJ Luba KC to similar effect in his very helpful book ‘Housing Conditions: tenants’ rights’, 6^th ed. (2019) at 2.39.

The Court then dealt with two exemptions contained in s9A (both of which are often raised by landlords in defence to fitness claims): works required by the tenant to comply with their duty to use the property in a ‘tenant-like manner’ (s9A(2)) and unfitness which is ‘wholly or mainly’ attributable to the tenant’s own breach of covenant s9A(3)).

On the first, the Court clarified that the ‘tenant-like manner’ carve out never applies to the structure and exterior; any term trying to do so would be void under s9A(4).

On the second and unfitness ‘wholly or mainly attributable’ to the tenant’s own breach, the Court said at paragraph 60:

Where the dwelling has become unfit for reasons ‘wholly or mainly’ attributable to a breach of the tenant’s own obligations – including any express duty and the implied duty to use the premises in a tenant-like manner – the landlord is not liable under the implied covenant. The threshold is a high one, however: tenant default that is a real but secondary cause of ‘unfitness’ does not meet it. So, for example, condensation mould wholly or mainly the result of the tenant’s own failure to ventilate or heat the dwelling will defeat the claim; but the same mould, if mainly attributable to a defect that is the landlord’s responsibility, such as inadequate insulation or the absence of effective ventilation, will not, even if the tenant’s use of the dwelling has played some part in it.

The expert had noted closed window trickle vents in one room and unchanged filters in the ventilation unit and while he could not rule out those failings may have contributed to the damp, they were not a primary or significant cause. The landlord had initially sought to argue the unfitness was wholly or mainly due to the Claimants’ behaviour, also citing the Claimants’ failure to use central heating and their generation of condensation from daily activities, but withdrew this at trial. The judge referred to both the HHSRS Operating Guidance that states a building must be able to cope with normal moisture production and the Damp and Mould Guidance which emphasises that it is unreasonable to attribute damp and mould to tenants’ ‘lifestyle choices.’

What did the Court decide?

The Court was satisfied from the findings based on the SJE report that the property, on the date of the hearing, was unfit for human habitation. This is because it was so far defective in multiple relevant matters in s10(1) that it was not reasonably suitable for occupation. Those matters were freedom from damp, repair, drainage and sanitary conveniences (the septic tank) as well as the prescribed hazards of damp and mould growth, asbestos, structural collapse and falling elements (the deflected and bulging bedroom ceiling) and domestic hygiene (the rodent infestation). At paragraph 62 the Court said:

 I am satisfied that, individually and collectively, those matters render the Property not capable of occupation for a reasonable period without risk to the health or safety of the Claimants. I am also satisfied that, regardless of risk, those matters render the Property not capable of occupation for a reasonable period without the undue inconvenience or discomfort of the Claimants.

The most serious deficiency was the damp and mould; the damp alone was sufficient to make the property unfit. While the visible mould in the property was described by the expert as ‘generally of a light extent, with localised areas of moderate intensity’ the Court was of the view that there was a real and substantial risk that the mould would develop and spread given the damp conditions, particularly in winter. The mould put the tenants’ health, including mental health at risk that, when taken with the damp, made the property unfit.

With regards to the asbestos, the Court referred to the case of Summers that made clear that a defect in one room could render the entire property unfit for human habitation. The asbestos was a hazard that was on its owns sufficient to make the property unfit until it had been repaired or replaced.

Individually and collectively the identified s10(1) matters meant the property was not reasonably suitable for occupation and was unfit for human habitation as at 25 June 2026, the date of the hearing.

The Outcome

The Court made an order for specific performance requiring the landlord to carry out specific remedial works identified in the expert’s report that would cure the property’s unfitness. The Claimants were also awarded their costs on the standard basis and a payment on account.

The order required the Claimants to move out of the property temporarily for works to be carried out. The Claimants sought an order that the landlord provide and pay for temporary alternative accommodation (a ‘decant’). This application was refused and the reasons given were:

(a) A ‘decant’ is often an entitlement for tenants in the social sector, whether of a local authority or a housing association, under the terms of the tenancy or the landlord’s policy. There is no equivalent right for a private tenant. The Claimants must therefore establish their entitlement to alternative accommodation in the ordinary way, as a matter of remedy for the breach I have found, and not as a freestanding right.

(b) The usual remedy, where a tenant has to move out so that works can be carried out, is a claim for damages for the cost of doing so caused by a breach of the implied covenant – the cost of alternative accommodation, removal, storage and the like. Such a claim is ordinarily determined at the quantum stage, at the end of the trial, once the works and their consequences are known: see, for example, McGreal v Wake (1984) 13 HLR 107. What is sought here is, in substance, a payment on account of those damages, in advance of any assessment of damages. No reason has been advanced for taking that course, and no authority has been cited to support it.

(c) As a necessary preliminary to obtaining such an order the Claimants would, in any event, have to prove that moving out is necessary to enable the works to be completed. That evidence is not presently available. The single joint expert, Mr. Badham, does not say that vacation is necessary. His evidence is that no single item of work requires vacant possession, that vacation would on the aggregate scale of the works be more practical or desirable, and that whether it is necessary for these particular occupants is beyond his expertise (report, paragraphs 9.1.11, 9.4.3 and 10.6; Part 35 answers 1, 3 and 8). On that evidence the necessity of a ‘decant’ is not made out.

(d) The question whether vacation is necessary is likely to turn on contested issues concerning the vulnerabilities of the Claimants. Evidence of those vulnerabilities will be central to the personal injury and Equality Act 2010 claims, which have been remitted to the County Court. There is a particular risk of inconsistent findings if I were to decide the necessity of a decant now, on partial evidence, when the fuller evidence on the same issues falls to be considered in the remitted trial.

The landlord’s late application to amend

The landlord had applied to amend her Defence on the first day of trial. The proposed amendment pleaded a defence under s9A(3) that the unfitness was wholly or mainly attributable to the tenants’ own historic failures to provide access in breach of covenant.

The application was refused. It was a very late amendment, there was no good reason the point had not been made earlier, and whether access failures could have been wholly or mainly responsible for the unfitness was a causation issue that should have been put to the SJE, and it was not. Allowing the late amendment would cause the Claimants real prejudice. In any event, the defence went to historic unfitness which was not being determined at this trial.

Comment

This is a thorough judgment, providing an authoritative account of the meaning of fitness for human habitation.  Particular points to note are:

1) The older authorities including Summers and Rendlesham remain a reliable guide on the meaning of fitness. They remain good authority for the point that fitness has two distinct elements and that premises may be unfit if:

1. the conditions present a risk to the health or safety of the occupiers; or
2. the conditions have a sufficiently negative effect on the occupier’s comfort and convenience, even if there is no risk to health or safety.

This means a property can be unfit even if there is no risk of harm, if by reason of one of the relevant matters, the property cannot be occupied for a reasonable period without undue inconvenience or discomfort to the occupants.

2) The Court does not require a ‘category 1’ or ‘category 2’ hazard to make a finding of unfitness, although such an assessment would be strong evidence of unfitness.

3) Where the main cause of the unfitness is a defect for which the landlord is responsible such that any proven tenant default is only a secondary cause, that will not afford the landlord a defence to a claim. Tenant use of the property that contributes to the unfitness, for example, use that contributes to a mould problem, is not enough where it is not the primary cause of unfitness. The HHSRS Operating Guidance and Government’s Damp and Mould guidance can help the Court and are worth referring to.

4) The claim, very unusually, was issued in the High Court instead of the County Court and there is reference in the judgment to its expedition due to the property’s condition. While the High Court was willing to try the issue of current fitness it determined the County Court was the more appropriate venue for the historic disrepair and fitness claims together with the personal injury and Equality Act claims that had already been remitted there (the High Court noting it had no jurisdiction over the Equality Act claim). The willingness of the High Court to deal with the finding of fitness and order for specific performance might be taken by some as lending support to asking the High Court to deal with urgent applications under Awaab’s Law.

5) The Court’s refusal to order the landlord to provide ‘decant’ accommodation was in the context of specific performance of section 9A Landlord and Tenant Act 1985. There is an entitlement to suitable alternative accommodation at the landlord’s expense, until relevant safety work has been completed under Awaab’s Law (regulation 16 of the Hazards in Social Housing (Prescribed Requirements) (England) Regulations 2025). However, for the time being this is limited to social tenancies and specific hazards only.

6) The judgment expressly did not decide whether a landlord must have notice of a defect before their liability under the fitness covenant arises. A requirement for such notice is read into section 11 in respect of disrepair.

Postscript

The judgment cites, with great approval, Housing Conditions: Tenants’ Rights 6^th Edition, the book Giles co-authored with HHJ Jan Luba KC and Catherine O’Donnell.

Readers of this blog will almost certainly already know how Giles was instrumental in drafting the Homes (Fitness for Human Habitation) Act 2018. He was also, on this blog, a notable commentator on its treatment so far in the County Court, and he had identified years ago the relevance of case law under section 1 of the Defective Premises Act 1972. It will not have come as a surprise to readers of this blog that he was right.