From 20 March 2019, residential landlords will be required to comply with the Homes (Fitness for Human Habitation) Act 2018 (“the Act”). It is estimated that 2.5m-3m people, including children, live in unsafe conditions (Shelter 2017) and the Act aims to ensure that all landlords provide and maintain homes of acceptable standards.
What is changing?
Landlords are currently obliged to keep property “in repair”. From 20 March 2019, they are required to ensure that they are “fit for human habitation”.
The standard will depend on the property and its occupants and is not defined in the Act but various factors will be considered including damp, natural lighting, drainage, water supply, facilities for food preparation and “any prescribed hazard”. This catches any risk of harm to the health or safety of an occupier from a deficiency in the property or as set out in regulations. Examples could include non-compliant cladding, asbestos and pests. It is important to note that the property will only be unfit if the defect means that it is not suitable for occupation.
Although the property must be fit for human habitation at the outset of a tenancy, this obligation extends throughout the entire period of the tenancy too. It is vital that landlords take a proactive approach, with photographic evidence of a property’s condition at the outset and throughout the tenancy as appropriate.
Which tenancies are affected
The Act will apply to any home or dwelling let to a tenant by a social or private landlord under a tenancy agreement of less than seven years.
This includes all leases granted on or after 20 March 2019, including new periodic tenancies, all fixed term tenancies granted before 20 March 2019 which become periodic after that date and all periodic tenancies existing both on 20 March 2019 and 19 March 2020. Although there are a few exceptions such as agricultural tenancies, most secure, assured and protected tenancies will also be caught.
It is not possible to contract out of the Act and terms will be implied into all affected tenancies.
Which parts of the property are affected?
The answer to this is straightforward: the Act applies to the entire property, both the parts let to tenants and the common or retained parts. The Act and the obligations above are therefore wide and will catch stairwells, bin stores, basement or attic areas etc.
What action can a tenant take?
If a tenant believes that their property is not fit for human habitation, they can issue a claim in the courts for an injunction requiring the landlord to take action and/or damages. Any damages awarded are likely to be calculated with reference to loss of amenity, as with current disrepair claims.
The Act does not relieve tenants of their own obligations to keep their let parts of the property in repair. If there is any doubt at the outset, landlords should obtain expert evidence from a surveyor. Tenants will be able to provide their own evidence if claiming under the Act, without having to rely on Local Authority involvement as is presently the case.
Best practice for landlords
As the standard required for each property is fact specific, it will take some time for the Courts to establish the true extent of landlords’ obligations. However in the meantime, landlords should assess their estate management processes and ensure that the following points are covered:
- Regular inspections and audits of common parts –landlords are deemed to have notice of a fault or hazard as soon as it arises without a tenant giving notice.
- Deal with complaints from tenants swiftly – once notified that a property is unfit for human habitation, a landlord has a reasonable amount of time to bring the property back up to standard. If there is doubt as to the standard of the property or the level of works required, expert evidence should be obtained from a surveyor.
- Keep on top of legislative change – it will be possible for a property to become unfit as a result of new regulations relating to the condition of property, without there being any actual physical change to the property itself.
- Seek advice - If in doubt about a complaint from a tenant or whether you have complied with your obligations under the Act, seek advice without delay.