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Landlords warned on fitness for human habitation ahead of new Act

View profile for Helen Porter
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On 20 March 2019 the Homes (Fitness for Human Habitation) Act 2018 (the Act) will come into force in England. The Act will give tenants the right to take court action for breach of contract if a property is not fit for human habitation at the start of and throughout their tenancy.  Helen Porter, Partner in the Southampton based Litigation and Dispute Resolution team, explains the amendments being introduced by the Act and what they mean for landlords.  

The Act amends the Landlord and Tenant Act 1985, which has become outdated in that it restricts the application of the implied term requiring a property to be fit for human habitation to properties with a rent of no more than £80 in London and £52 elsewhere[1].

What is unfit for human habitation?

A property is unfit for human habitation if there is a defect in the property that is so serious that it is unfit for that person to live in it. The onus is on your tenant to show that the property is unfit for human habitation and a subjective test will be applied based on their individual circumstances.  As an example, an older tenant or a young family may be more susceptible to defects in a property than a single young tenant would be.

The Landlord and Tenant Act 1985 sets out the criteria which should be applied in coming to the decision as to whether a property is unfit for human habitation.  These include:

  • whether there is a need for repair,
  • the structural stability,
  • freedom from damp,
  • the internal arrangement (i.e. layout),
  • whether there is sufficient natural lighting,
  • whether there is sufficient ventilation,
  • if there is an adequate water supply,
  • drainage and sanitary conveniences are present and working, and
  • whether there are sufficient facilities for preparation and cooking of food and for the disposal of waste water.

Having applied these criteria, the test is whether or not the property is reasonably suitable for occupation in its current condition.

What does not amount to unfit for human habitation?

The Act 2018 specifies the situations where a landlord would not be liable, and includes:

  • where the property has been damaged by an inevitable incident (such as a fire, flood or storm),
  • repairing or maintaining anything that the tenant is entitled to remove from the property,
  • where work or repairs require the consent of a superior landlord or a third party which has not been obtained, and
  • where the premises are not fit for human habitation because of the tenant’s own breach.

What happens if a property is unfit for human habitation?

If a property has a condition that is not reasonably suitable for occupation then it becomes your duty as the landlord to put right the issue in a reasonable time.  What amounts to a reasonable time varies and is dependant upon the severity of the issue.  If you fail to put the condition right in a reasonable time then the tenant shall be entitled to bring a court claim requiring that you perform your obligations and carry out the necessary works.  

Additionally, landlord’s facing such a claim could be liable for damages; the amount may be calculated based on the entire length of the contract, not just for the time period of which the property has been deemed inhabitable.

To what tenancies does the Act apply?

The Act applies to all tenancies under 7 years of length that are entered into on or after 20 March 2019.  The Act shall apply to periodic tenancies from 20 March 2020 thus giving landlord’s a year to make any changes to a property, which may be occupied by a long-standing tenant and currently fall short of the fitness for habitation standards.

Does this affect a landlord’s use of Section 21 Notice?

At the present time, it is not intended that the new legislation will directly affect your use of the Section 21 procedure to regain possession of your property. However, you should ensure your property is fit for human habitation in any event, so as to avoid being served with a local authority Home Improvement Notice (relating to health and safety concerns about the condition of property); this would be an obstacle to regaining possession via the Section 21 procedure.

If you are a landlord and have questions regarding the Act or wish to discuss with the team serving a Section 21 Notice, you can contact Helen or the team on 023 8071 7412 or email helenporter@warnergoodman.co.uk.

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice. All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.


[1] Landlord and Tenant Act 1985 c.70 s8(3)