The Homes (Fitness for Human Habitation) Act was enacted on 20 December 2018 and some of its provisions came into force this month.
These new provisions will affect the extent of Landlords’ repair obligations and, as such, bring the risk of exposure to new claims from tenants and occupiers. As such, we write to provide a brief summary of the Act and the potential impact it will have on Landlords.
How has the law changed?
The Homes (Fitness for Human Habitation) Act 2018 is new legislation amending part of the Landlord and Tenant Act 1985. It means that rented homes, in both the private and social sector, must be fit for human habitation at the time the tenancy is granted and that it remains so throughout the tenancy. The new rules replace outdated laws, which required homes with an unrealistically low rent of less than £80 per year to be fit for human habitation. It is also expected that changes will be made to the existing housing disrepair protocol to include fitness claims alongside.
When does the law come into force?
There will be a phased implementation but the new provisions are now in force for all new tenancies under seven years (or longer if granted by a RP) and new periodic tenancies. It will then apply to all tenancies that become a periodic tenancy after 20 March 2019 (as and when they turn periodic or are renewed). Finally, it will apply to all existing periodic tenancies from 20 March 2020.
Does it apply to all tenancies?
The new rules apply to all new tenancies of less than seven years (or longer if granted by a RP and not a shared ownership lease), including periodic tenancies, and those which begin as a fixed term before 20 March 2019 but become a periodic tenancy (or are otherwise renewed) after this date. It will not affect licences.
It will also apply to existing periodic tenancies from 20 March 2020 giving landlords 12 months to ensure homes are fit for human habitation. The legislation will not affect fixed term tenancies starting before 20 March 2019 until they are either renewed or become periodic after that date.
How is ‘fit for human habitation’ defined or tested?
Ultimately, it will be up to the courts to determine whether a home is fit for human habitation. It will of course remain to be seen what the courts make of the new provisions but Section 10 of the Landlord and Tenant Act 1985 requires the court to have regard to the following: repair, stability, 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.
The new provisions add to that list the Housing Health and Safety Rating System (HHSRS), which currently categorises 29 potential hazards: including damp and mould growth, noise, pests and fire hazards. It is important to note that a property does not have to have a hazard to be unfit for human habitation. The new provisions will apply to the tenant’s property and any common parts which the tenant has access to – mirroring the current law on usual disrepair claims.
What impact could the new rules have on landlords?
The potential impact on landlords, especially those in the social housing sector, could be significant. Previously, landlords have only been affected by disrepair provisions, which means that legally, landlords don’t have to replace or upgrade the property or services in the home unless they have fallen out of repair.
The new rules may put much more onus on landlords to ensure all parts of a home meet a higher standard which could mean improvements.
However, a key question will be whether the property is not reasonably suitable for occupation having regard to the defects as a whole – it is unlikely to be concerned with minor defects. It is also worth bearing in mind that a landlord will not be required to remedy defects that arise from the act or default of a tenant. The tenant will need to prove that the landlord is responsible for carrying out the works required.
What are the implications for landlords who breach the new rules?
As in disrepair cases, tenants will be able to ask the courts to order specific performance (an order requiring a landlord to carry out works). Tenants will also be able to seek damages for breach of contract with compensation assessed in the way disrepair claims are currently. Legal aid will be available for tenants in certain cases as well as no win, no fee arrangements. Most cases will be heard in the County Court but as the new Act will be open to interpretation, it is likely that there will be significant scope for appeals to work out what the new provisions really mean in practice.
For more information, please contact Lee Russell, Solicitor in our Housing Management & Property Litigation team.