Homes (Fitness for Human Habitation) Act 2018 is passed

A new act aims to boost standards in rented homes and give tenants more power to hold their landlords to account.

On 20 December 2018 the Homes (Fitness for Human Habitation) Act 2018 (the 2018 Act) was given royal assent. It amends the Landlord and Tenant Act 1985 (the 1985 Act) to require that both social and privately rented properties in England and Wales meet certain standards, both at the beginning and throughout a tenancy. If these standards are not met, tenants have the right to bring a claim against their landlord for breach of contract. It comes into force on 20 March 2019 (the commencement date).

Background

Currently, until the 2018 Act comes into force, with the exception of properties let on extremely low rents, the 1985 Act only requires landlords to keep properties “in repair”, as opposed to being “fit for habitation”. If a property has a defect that is not classed as ‘disrepair’ because the property has never been in a better condition (such as inadequate ventilation that leads to excessive condensation), the landlord is not obliged to improve its condition. The 2018 Act seeks to close this loophole.

To which tenancies does the 2018 Act apply?

The 2018 Act will apply to:

• all leases of less than seven years granted on or after the commencement date, including new periodic tenancies;
• all fixed term tenancies granted before the commencement date but that become periodic tenancies after the commencement date (i.e. statutory periodic tenancies arising after a fixed term assured shorthold tenancy comes to an end, secure tenancies arising after an introductory tenancy, or an assured tenancy after a starter tenancy); and
• all periodic tenancies in existence both at the commencement date and 12 months after the commencement date (i.e. existing statutory periodic tenancies, secure tenancies, assured tenancies and protected tenancies).

Other than as mentioned above, the 2018 Act will not apply to leases granted before the commencement date or pursuant to agreements for lease entered into before the commencement date.

Certain types of tenancies are also exempt from the 2018 Act, including leases granted to registered social landlords, local authorities and the Crown. Agricultural tenancies are also excluded, save for where a property is occupied by an agriculture worker as part of their contract of employment.

What does the 2018 Act require?

There is no set definition of what is meant by a property being fit for human habitation. Rather, the wording of the 1985 Act is retained to say that, when determining whether a house is unfit for human habitation, regard is given to its condition concerning factors such as repair, stability, freedom from damp, natural lighting, ventilation, water supply, drainage and sanitary services and facilities for food preparation/cooking. The 2018 Act adds the further factor of ‘any prescribed hazard’, defined in section 2(1) of the Housing Act 2004 as a hazard posing a risk of harm to the health or safety of an occupier which arises from a deficiency in the property or as prescribed in regulations.

If the property is defective in one of more of these factors such that it is not reasonably suitable for occupation in that condition, then it is not fit for human habitation. The ambit of the 2018 Act is therefore very wide and could in the future cover matters not currently defined as hazards. Each case will turn on its own facts.

To which property does the obligation extend?

The obligation applies to the let property itself, and any wider building owned by the landlord of which the let property forms part. It would therefore cover problems arising from, say, the common parts of a block of flats.

The Act will not affect any responsibilities of tenants in their leases; tenants will still need to comply with their own repairing and other obligations to use properties in a tenant-like manner. Therefore the landlord will not be liable if a property is rendered unfit for habitation due to the tenant’s fault.

The parties to a lease cannot contract out of the requirements of the 2018 Act and landlords will not be able to forfeit or impose any penalty on their tenants if they take action to enforce the Act.

What can tenants do if the obligation is breached?

Tenants will need to issue court proceedings against their landlords for breach of the contractual term implied by the 2018 Act.

The 2018 Act specifically states that the court can order specific performance of the landlord’s obligation to ensure the property is fit for habitation. What the landlord is ordered to do will obviously differ according to the reason for the unfitness.  General damages for breach of contract can also be claimed.

Comment

The 2018 Act is part of the government’s overall drive to increase standards in rented properties and tenant protections generally (as covered in our previous article Help for residential tenants is on the way).

The 2018 Act is to be welcomed in giving tenants a meaningful remedy for landlords who fail to provide properties fit to be called homes. Evidence will be key in making claims under the 2018 Act and so tenants should notify landlords of problems as soon as they arise and then keep a paper trail of all complaints, including photos and surveyor’s and medical reports. Landlords should respond promptly to any complaints made.

Homes (Fitness for Human Habitation) Act 2018