The Homes (Fitness for Human Habitation) Act 2018 now applies to all tenancies

The Homes (Fitness for Human Habitation) Act 2018 came into force on 20^th March 2019, and made several amendments to the law around the condition of rented property.

The Act initially applied to residential tenancies (within the scope of the Act) granted on or after 20^th March 2019. However, as of 20^th March 2020, the Act applies to ALL relevant tenancies, despite their start date. Therefore, both landlords and tenants need to be aware of the obligations and implications imposed by the Act.

The most significant change is an implied term in (most) residential tenancy agreements, by the landlord, that the property is fit for human habitation and will remain so during the term of the lease.

What does this change mean for landlords and tenants?

The new section 9A(1) includes an agreement by the landlord in any tenancy agreement that the property:

• is fit for human habitation; and
• will be for the duration of the term of the tenancy.

The law makes it impossible for landlords to avoid this obligation (for example, by excluding it in the tenancy agreement).

What does ‘unfit for habitation’ mean?

This definition is set out in section 10 of the Act and refers to the following key areas:

• repair
• natural lighting
• stability
• ventilation
• freedom from damp
• water supply
• internal arrangement
• drainage and sanitary conveniences
• cooking facilities/disposal of wastewater
• any ‘prescribed hazard’ (in England only)

A property will be found to be unfit if it is ‘defective in one or more of these matters such that it is not reasonably suitable for occupation in that condition’.

What counts as a ‘prescribed hazard’?

This includes anything listed in the Housing Health and Safety Rating System (HHSRS) which contains 29 ‘matters and circumstances that may give rise to a hazard’. Examples include damp and mould growth, asbestos and MMF, water supply and crowding/space. Local authorities often publish comprehensive lists alongside guidance on how best to deal with hazards.

What is the landlord responsible for?

The landlord will become liable for any unfitness of the property once they are notified of the issue (by either inspection, the tenant or a third party), and have failed to rectify it within a reasonable period.

For any retained parts (for example, the exterior walls on a block of flats) which have caused the property to become unfit, liability arises as soon as the unfitness arises.

I’m a landlord, can I get access to the property to determine it’s unfit?

The Act implies a term which allows the landlord (or agent) to enter the property to inspect the state of repair and condition:

• during reasonable hours of the day; and
• upon 24 hours’ written notice is provided.

If a tenant refuses you access, a landlord should seek further legal advice to obtain access.

Exceptions

There are exceptions to the landlord’s obligations when the unfitness is a result of the tenant. For example, if the tenant has caused the damage, or fails to behave in ‘a tenant-like manner’; or breach their tenancy agreement.

When do the courts get involved?

If a matter in respect of the state and condition of a property remains unresolved, either party is entitled to bring a claim to seek a resolution. Prior to issuing, the relevant pre-action protocol should be adopted.

The claim will be a county court claim and the claimant will seek an injunction (for works to be completed) and / or damages.

If left to the court to determine, the court will assess the evidence available and decide whether the property is fit for habitation under the Act.

Further information

With many years of property law and dispute resolution experience across the team, our solicitors are ideally placed to advise landlords, letting agents and tenants on both contentious and non-contentious areas of tenancy matters. For swift, expert advice, call 0117 325 2929 or complete our online enquiry form.