On 20 March 2019, the Homes (Fitness for Human Habitation) Act 2018 (The Act) comes into force in England and Wales amending sections 8 to 10 of the Landlord and Tenant Act 1985. The Act creates an obligation on landlords to make sure dwellings provided are fit for human habitation from the start of their tenancy and remain so throughout.
Failure to do so will provide tenants (both private and social) with a statutory right to take action against their landlord for breach of contract and for compensation. A landlord cannot contract out of the covenant implied into the tenancy agreement or levy any contractual penalty on the tenant for relying on the Act.
Landlord and Tenant Act 1985
Currently landlords have no contractual obligation to keep a dwelling in a condition that is ‘fit for human habitation’. Section 11 Landlord and Tenant Act 1985 contains obligations to keep the structure of a dwelling and installations for supplying heat and water in repair, but no positive obligations to deal with improvements, design defects and other issues that affect fitness for habitation, such as poor ventilation or fire safety.
Definition of ‘fitness for human habitation’
The scope of the Act is broad; ‘fitness for human habitation’ takes into consideration factors such as repair, stability, freedom from damp, natural lighting, ventilation, water supply, drainage and sanitary conveniences and facilities for preparation and cooking of food and disposal of waste water.
In addition, the Act goes further to include ‘any prescribed hazard’ under s.2 (1) of the Housing Act 2004. So, in deciding whether a dwelling is ‘unfit’ regard shall be had to whether there is a risk of harm to the health and wellbeing of the tenant. Previously such hazards could only be enforced by local authorities.
What type of tenancies does the 2018 Act apply to?
The Act will apply to all leases of less than seven years granted on or after the 20 March 2019 (the commencement date), including new periodic tenancies; all fixed term tenancies granted before the commencement date that become periodic tenancies after the commencement date; and all periodic tenancies in existence (at the commencement date and 12 months after the commencement date).
The Act will not affect the terms and conditions of the tenant’s agreement with regards to the tenant’s responsibilities, and landlords will not be liable for the property being rendered ‘unfit for human habitation’ as a result of the tenant’s behaviour and actions.
What we can expect to see is a raft of new claims in relation to condensation dampness, which can clearly have a negative impact on tenant’s health. Currently, condensation that is not caused by disrepair is not a matter of or contractual breach. In the future, we can expect to see complex, technical arguments over the cause of condensation; whether it arises as a result of design or construction defect, could be improved by better heating, insulation or ventilation or as a result of how the property is being utilised.
Registered Providers need to be very much aware of their obligations under the Act, and review their asset management strategies to consider how best to avoid such claims (by prioritising improvement programmes) and how best to defend such claims (by responding to, and accurately recording complaints, and where possible using technology to monitor use of a property).
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