In this update for landlords, tenants, and local housing authorities, Samuel Okoronkwo Jr provides a reminder of the Homes (Fitness for Human Habitation) Act 2018, especially given the 20 March 2020 deadline.
HISTORY OF THE 2018 ACT
Prior to the introduction of the Homes (Fitness for Human Habitation) Act 2018 (“the 2018 Act”) a landlord had to ensure that their property was fit for human habitation by virtue of Section 8 of the Landlord and Tenant Act 1985 (“the 1985 Act”). However, this provision only applies to tenancies with an annual rent of £80 or less in London (£52 or less in other parts of England). It is clear therefore that this provision is not good enough.
Also, residential tenants can approach the local housing authority (“LHA”) if their premises are in a poor state of repair and a LHA environmental health officer uses a risk based assessment tool to maintain the health and safety of tenants and visitors. However, this is a complex assessment tool and not consistently interpreted by officers. Further, if the landlord is the LHA, it may be that there is less of an incentive to take enforcement action.
Therefore, the 2018 Act was introduced to ensure that most residential tenancies of seven years and less have a course of action against a landlord for not providing housing to the requisite level for fitness for human habitation for its residents.
THE FRAMEWORK
The 2018 Act came into effect as of 20 March 2019 and amends the 1985 Act and incorporates sections 9A – 9C, including most social and residential landlords.
The 2018 Act implies covenants into tenancies that a property is fit for human habitation at the start of the tenancy, and will remain so throughout the duration of the tenancy. According to Samuel Okoronkwo Jr, this implies that a landlord must check a property prior to, and throughout the term, for any issues that could negate its fitness for human habitation. Consequently, a landlord cannot neither contractually exclude the implied covenants, nor seek relief from the Court in this regard.
The legislation applies to any tenancies granted on or after 20 March 2019 for a term of 7 years or less, and periodic tenancies granted before 20 March 2019 will have until 20 March 2020 to ensure that the property is compliant with the legislation. It is important to note that if a landlord has the option to terminate the tenancy in the first 7 years then the tenancy will be treated as if it is for a term of less than 7 years.
WHEN IS A PROPERTY UNFIT FOR HUMAN HABITATION?
Pursuant to section 10 of the Landlord and Tenant Act 1985 (“the 1985 Act”), the following consideration will be taken to the properties condition regarding the following:
- Freedom from damp.
- Internal arrangement.
- Natural lighting.
- Water supply.
- Drainage and sanitary conveniences.
- Facilities for preparation and cooking of food and for the disposal of waste water.
- Any prescribed hazard.
PROCEDURE
Prior to letting the property, a landlord must check that it is fit for human habitation. However, if after taking up possession of a property, a tenant identifies a problem within the list above, and thinks that this renders the property as being unfit for human habitation, then they must serve upon the landlord a notice of lack of fitness. The landlord must be given a reasonable period of time to make good any of the issues complained of. It will usually be the court that determines what a reasonable period of time is. It is important to note that a landlord cannot be made responsible for anything that remains the responsibility of the tenant through the tenant’s obligations within the tenancy agreement.
REMEDIES
Samuel Okoronkwo Jr. argues that the 2018 Act provides for the tenant to ask the court to award damages or for an order seeking specific performance from the landlord to make good any problems identified. Additionally, a LHA can also take action of its own volition, including the service of an improvement notice or an emergency remedial action notice.
If you are a landlord, tenant or LHA and require advice from our barristers on Homes (Fitness for Human Habitation) Act 2018, please get in touch by consultation with a barrister; email us at clerks@mercantilebarristers.com; or telephone us on 020 3034 0077