Updated 'Fitness for Human Habitation' Standard - Homes (Fitness for Human Habitation) Act 2018

The Homes (Fitness for Human Habitation) Act 2018 (‘the Act’) comes into force on 20 March 2019.

The Act introduces a new implied covenant in tenancy agreements (whether written in the agreement or not) that social housing landlords, private residential landlords, and agents acting on their behalf, must ensure that the property is fit for human habitation both at the beginning and throughout the tenancy.

These obligations extend to the property and all parts of the building (including any common or shared areas) in which the landlord has an estate or interest.

The Act gives tenants a direct cause of action against the landlord if the landlord fails to do the necessary maintenance. Prior to the Act, a tenant would have to rely on local authorities to challenge a landlord about the condition of their rented property.

Whilst the Act extends to England and Wales, its practical changes only affect properties in England.

The Act applies to any lease of a property of less than 7 years made on or after 20 March 2019.

The Act will initially only apply to new or reserved fixed term tenancies. It will apply to all periodic tenancies from the 20 March 2020.

Is Your Property ‘Fit for Human Habitation’?

It is ultimately for the courts to determine whether a property is fit for human habitation.

The question put to the courts is whether the property is so far defective in one or more of the following matters that it is not reasonably suitable for occupation:

1. 1. Standard of repair;
2. 2. Stability;
3. 3. Freedom from damp;
4. 4. Internal arrangement;
5. 5. Natural lighting;
6. 6. Ventilation;
7. 7. Water supply;
8. 8. Drainage and sanitary conveniences;
9. 9. Facilities for preparation and cooking of food and for the disposal of waste water; and
10. 10. Hazards prescribed in the Housing Act 2004.

Exemptions from the Implied Covenant

A landlord will not be held liable for breach of this implied covenant where a property is in an unfit state arising from certain instances including:

1. 1. A tenant failing to use the property in a tenant-like manner;
2. 2. The property is damaged as a result of a natural disaster (fire, storm or flood); or
3. 3. Consent for works was requested but not obtained from a third party (i.e. superior landlord).

Consequences of Breach

This legislation is unlikely to affect most landlords who are already providing dwellings which are fit for human habitation; however, it is important that landlords ensure that they comply with these obligations as their tenants can now sue them directly if they don’t comply.

If the property is not fit for human habitation, the tenant has the right to bring a claim against their landlord for breach of contract and issue court proceedings against their landlord. It is possible that landlords could potentially be sued for damages for the entire length of the contract.

Next Steps

In order to ensure that you don’t fall foul of these obligations, the following best practices should be adopted by both landlords and letting agents:

1. 1. Take photographic inventories at the start of the tenancy, during the tenancy (mid-term inspection), and at the end of the tenancy on check-out;
2. 2. Landlords or agents should consider whether more frequent inspections are required to ensure the property remains fit for human habitation;
3. 3. Keep a paper trail of all correspondence with the tenant relating to the repair and condition of the property (and use photos where possible to evidence the repair and condition);
4. 4. Respond quickly and thoroughly to any requests, issues, or reports made by the tenant regarding the state of the condition of the property; and
5. 5. In respect of common areas or other shared parts of the building owned by a third party, the landlord and/or letting agent should make sure these areas are kept in a state fit for human habitation.

Are you a landlord or letting agent? Are you concerned about the new powers the Act gives to tenants to sue landlords for breach of contract? Are there any steps or internal procedures that you will be adopting to ensure you do not fall foul of these obligations? Your comments are, as ever, welcome!