Homes (Fitness for Human Habitation) Act 2018

Introduction

The Homes (Fitness for Human Habitation) Act 2018 received Royal Assent on 20 December 2018 and came into force on 20 March 2019.

The Act amends the current fitness for human habitation found in the Landlord and Tenant Act 1985 and applies to England only.

Tenancies which the Act will apply to

The Act comes into force on 20 March 2019 and will apply to new tenancies (of less than seven years), including a renewal of an existing tenancy. 

The Act will also apply to a fixed-term tenancy that becomes periodic on or after 20 March 2019. 

Where the tenancy has become periodic before 20 March 2019, the Act will apply to the periodic tenancy 12 months from commencement (20 March 2020).

The Act applies to any lease under which a dwelling is let wholly or mainly for human habitation for a term of fewer than seven years and certain secure tenancies found in sections 13(1A) and (1B) Landlord and Tenant Act 1985. 

For exceptions (none of which are likely to be relevant to our readers), see section 14 Landlord and Tenant Act 1985.

Fitness for human habitation of dwellings in England

The Act inserts a new section 9A into the Landlord and Tenant Act 1985, headed “Fitness for human habitation of dwellings in England”.

9A(1) provides:

… there is implied a covenant by the [landlord] that the dwelling—

(a) is fit for human habitation at the time the lease is granted or otherwise created or, if later, at the beginning of the term of the lease, and

(b) will remain fit for human habitation during the term of the lease.

Under 9A(2), the implied covenant to keep fit for human habitation does not require the landlord -

• to carry out works or repairs for which the landlord is liable by the duty of the tenant to use the premises in a tenant-like manner or an express covenant of the lessee of substantially the same effect as that duty;
• to rebuild or reinstate the dwelling in the case of destruction or damage by fire, storm, flood or other inevitable accident;
• to keep in repair or maintain anything which the tenant is entitled to remove from the dwelling;
• to carry out works or repairs which, if carried out, would put the landlord in breach of any obligation imposed by any enactment (whenever passed or made);
• to carry out works or repairs requiring the consent of a superior landlord or other third party in circumstances where consent has not been obtained following reasonable endeavours to obtain it.

There is also no liability regarding the dwelling being unfit if the unfitness is wholly or mainly attributable to the tenant’s breach of covenant or if a county court makes an exclusion under section 12.

The obligations extend to the dwelling, and if the dwelling is part of a building (block of flats or bedsit in an HMO), the provisions apply to all parts of the building in which the landlord has an estate or interest.

Just like repairing obligations, it’s not possible to contract out of these provisions.

Implied covenant to inspect

There is also an implied covenant that the landlord, or a person authorised in writing by the landlord, may enter the dwelling to view its condition and state of repair, which is permitted -

• only at reasonable times of the day, and
• only if at least 24 hours' notice in writing has been given to the occupier of the dwelling.

Matters or circumstances determining if unfit

Determining whether a house is unfit or not is found in section 10 Landlord and Tenant Act 1985, which has also been amended by the Act, which adds “in relation to a dwelling in England, any prescribed hazard” (more on this in a moment).

Section 10(1) reads (including amendments from 20 March 2019):

In determining … whether a house or dwelling is unfit for human habitation, regard shall be had to its condition in respect of the following matters—

repair,

stability,

freedom from 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;

in relation to a dwelling in England, any prescribed hazard;

and the house or dwelling shall be regarded as unfit for human habitation if, and only if, it is so far defective in one or more of those matters that it is not reasonably suitable for occupation in that condition.

“Prescribed hazard” means any matter or circumstance amounting to a hazard for the time being prescribed in regulations made under section 2 of the Housing Act 2004. 

This presumably refers to schedule 1 of The Housing Health and Safety Rating System (England) Regulations 2005 because it refers specifically to “any matter or circumstance …” which are the 29 hazards listed in schedule 1.

The property is only regarded as unfit if (and only if) “it is so far defective in one or more of those matters that it is not reasonably suitable for occupation in that condition”.

The matters that could now cause a property to be unfit (only if it is so defective that it is not reasonably suitable for occupation) will also include from 20 March 2019:

• Damp and mould growth
• Excess Cold
• Excess heat
• Asbestos and MMF
• Biocides
• Carbon monoxide and fuel combustion products
• Lead
• Radiation
• Uncombusted fuel gas
• Volatile organic compounds
• Crowding and space
• Entry by intruders
• Lighting
• Noise
• Domestic hygiene, pests and refuse
• Food safety (inadequate provisions)
• Personal hygiene, sanitation and drainage
• Water supply
• Falls (baths, between levels, level surfaces and stairs)
• Electrical hazards
• Fire
• Flames, hot surfaces etc
• Collision and entrapment
• Explosions
• Position and operability of amenities etc
• Structural collapse and falling elements

It will be interesting to see how the courts interpret at what point (a) a hazard exists and then (b) whether it is so defective that the dwelling is not suitable for occupation. 

As long as common sense prevails, it won’t be a problem for our readers. The problem arises, for example, when there is something like a leak that is challenging to find or fix, causing dampness, and at what point does it become unsuitable for occupation?

Notice of the defect before liability

According to this excellent article by NearlyLegal, although there is no requirement for the landlord to be put on notice about any disrepair within the Act:

“We confidently expect that the same common law notice requirements will apply as with s.11 and s.11(1A).

For any unfitness within the dwelling (or to a house, if the whole house let), the landlord’s liability to the tenant will not start until the landlord has had notice of the unfitness (from the tenant or third party) and the landlord has had a reasonable period to rectify the unfitness.

For any unfitness arising from the landlord’s retained parts (common parts or exterior of a building of which the dwelling is part), the landlord will be deemed to be on notice as soon as the unfitness arises, and liable after a reasonable time to remedy the defects…”

Please see here for information about notice requirements before a landlord becomes liable for disrepair.

Government Guidance

The government has published guidance about the Act for landlords, tenants and local authorities. The guidelines for the Homes (Fitness for Human Habitation) Act 2018 can be found here.