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Fitness for Human Habitation Guide

Introduction

As of March 20th 2019, the Fitness for Human Habitation Act will come into force for tenancies in England. This legislation amends the Landlord and Tenant Act 1985 so that landlords must ensure their property is fit for human habitation at the start of the tenancy and then maintain this standard throughout rest of the time the tenant lives in the property. The purpose of this guide is to explain what this means for landlords and agents, including potential penalties.

What is meant by 'fit for human habitation'?

It is important to note that fit for human habitation does not mean that there is a defect in the property. It means that there is a defect in the property that is so serious that a court considers the property to be unfit for that person to live in.

This is an important distinction because it means that the property has to be judged on the basis of the property condition as it is, and whether it is unsuitable for the actual person who lives in it as opposed to the generic tests applied by local authorities using the Housing Health and Safety Rating System. As a result, a younger, fitter tenant living on their own would have a higher threshold for what is unfit for them to live in than an older person or someone with a young family.

Does the local authority enforce this?

No, the legislation allows for tenants to bring court actions directly without first involving the council, allowing the judge to decide whether a property is unfit for human habitation based on evidence. As such, while informal letters from the council will certainly be useful to a tenant they are by no means mandatory before action can be taken.

What criteria will the judge make their assessment based on?

A number of issues will be considered before a judgement is made. These include:

Where one or more of these criteria is present, the courts will then objectively assess whether the property is so defective that it is considered unfit for human habitation.

What sort of penalties can be applied to the landlord?

Landlords can potentially be sued for damages for the entire length of the contract. In addition, remedies such as forcing the landlord to perform the repairs are available to tenants in this case.

Does this apply to Wales?

No, this change applies to England only at this time.

Does the tenant need to notify the landlord of the defect?

While nothing specific exists in the legislation, the expectation is that it will operate in the same manner as a landlord's obligations under Section 11 of the Landlord and Tenant Act 1985. As such the requirement to notify the landlord will depend on whether the property is rented out on a joint tenancy or on a room only basis.

Tenancies rented on a joint tenancy basis.

The expectation is that landlords must be notified of any defect that arises in the interior of the property during the tenancy. They should then be allowed a reasonable time to fix this. However, as stated this is not explicitly stated in the legislation and this interpretation is based on the belief that the existing repairs case law will also apply to Fitness for Human Habitation claims. Landlords should consider increasing the frequency of their inspections to ensure their property remains fit for human habitation.

If the defect relates to the exterior of the property then no notice is required and the landlord's obligation to maintain the property to a fit standard will be triggered immediately.

Tenancies rented on a room only basis

Unlike joint tenancies, the landlord does not need to be notified of defects arising in the communal areas, making it even more important that landlords are checking their HMO properties regularly to make sure no defects have arisen.

If the defect occurs in the tenant's room then the landlord's obligation to fix the defect should only start after the tenant has notified them.

What is a reasonable time to fix the issue?

As with repairs under section 11 of the Landlord and Tenant Act, the reasonable time to fix the issue will vary based on the severity of the issue. If a tenant has no working boiler in the middle of winter for instance, the landlord should be prioritising the fixing of the defect much faster than in the summer.

Are there any defects the landlord is not responsible for?

The landlord is not responsible for -

Does it apply to all tenancies?

It will apply to secure, assured (including assured shorthold) and introductory tenancies as long as the term of the tenancy is for less than 7 years. It will come into force at different times however. This includes subletting tenancies.

New and renewed tenancies from March 20th 2019

From March 20th 2019 the legislation will apply to any new tenancies granted on or after that date.

Where the tenancy is renewed on or after March 20th 2019, the legislation will apply at the point of renewal and landlords should check to ensure the property is fit for human habitation at that point. This includes statutory periodic tenancies that come into force on or after this date or any contractual periodic tenancies that are agreed on or after this date.

Tenancies that began before March 20th 2019

The legislation will not apply to fixed term tenancies that began or were agreed to begin before March 20th 2019 (ie student lets signed up in January to start the following September). In addition, if that fixed term then turns into contractual periodic tenancy as agreed in the contract, it is likely that the legislation will not apply as they are not technically renewals. Nevertheless, landlords should be careful with this until there is case law available to verify this view.

For periodic tenancies that began before March 20th 2019, the legislation will apply but there is a 12 month grace period before enforcement action can be taken. As such a defect must arise on or after March 20th 2020 for the legislation to apply.

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