Homes (Fitness for Human Habitation) Act 2018 – What do you need to know as a landlord?
- Conscious Homes
- Oct 7, 2019
- 6 min read
The Homes (Fitness for Human Habitation) Act 2018 came into force on 20th March 2019.
So what does it mean for landlords?
Landlords have always been legally obligated to ensure that their properties are ‘fit for human habitation’, but now there’s even more emphasis on landlords (in England) to ensure their properties are safe from the start of a tenancy and throughout that tenancy until the end.
Failing to comply could lead a large amount of headaches any landlord and could also lead to a landlord being sued!
Firstly, join a landlord association to help you keep on top of your legal obligations.
What is the Homes (Fitness for Human Habitation) Act 2018?
The ‘Fitness for Human Habitation Act 2018’ is an extension of the current ‘Fitness for human habitation Act’ which can be found in section 10 of the Landlord and Tenant Act 1985.
The Fitness for human habitation Act is a piece of legislation that ensures landlords provide a property that is fit for human habitation, for example, landlords must provide a structurally sound property with hot and cold running water etc.
Ultimately, the legislation is supposed to stop landlords from providing properties that are barely even suitable for farm animals, and it’s something landlords with rentals in England and/or Wales should already be complying with. In reality most landlords do comply, whether they are aware of the Act or not.
The 2018 amendment to the act, which only applies to rental properties in England, includes the insertion of Section 9 and small amendments to Section 10.
Thankfully there are no new obligations for landlords under the Homes (Fitness for Human Habitation) Act 2018 you just need to carry on being a good landlord, however, the Act does bring a couple of practical changes.
It is unlikely that these changes will have any impact on all the half decent landlords out there as most landlords are complying by default, because we are all decent normal people. Unfortunately, there are some landlords that are currently falling short and will continue to do so regardless of the legislation in place.
The most significant amendments to note are Section 9A(1) and 9A(6):
Section 9A(1) states that rentals in England should be ‘fit for human habitation’ from the start of the tenancy up until the end:
…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.
Section 9A(6) covers the obligation to the dwelling; if the dwelling forms part of a building (block of flats or bedroom in an HMO), the obligation extends to all parts of the building in which the landlord has an estate or interest.
Where a lease to which this section applies of a dwelling in England forms part only of a building, the implied covenant has effect as if the reference to the dwelling in subsection (1) included a reference to any common parts of the building in which the lessor has an estate or interest.
There are a few clarifications in the Act, that includes guidance on how the landlord (or a person authorised) should provide the tenant with ‘notice’ to gain ‘access’ to the premises for the purpose of viewing its condition and attending repairs, which is pretty standard and self-explanatory:
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 (unless its an emergency of course)
Everything you need to know about the Homes (Fitness for Human Habitation) Act 2018. It’s a little long but has everything there.
What does “fit for human habitation” actually mean?
Section 10 of the Housing Act sets out the items that are taken into consideration when determining if a house is ‘unfit for human habitation’, which are:
repair (e.g. the building should not be neglected or in a bad condition)
stability (e.g. the building should be stable)
free from damp
internal arrangement (e.g. the property should not have an unsafe layout)
natural lighting (e.g. there should be an adequate amount of natural light)
ventilation (e.g. there should be enough ventilation or ability to ventilate)
water supply (e.g. there should be a supply of running hot and cold water)
drainage and sanitary conveniences
facilities for preparation and cooking of food and for the disposal of waste water
and the house shall be regarded as unfit for human habitation if it is defective in one or more of those matters that it is not reasonably suitable for occupation in that condition.
None of this should be new to landlords in England & Wales, who should already be on the ball and ensuring their properties meet up to the standards, however, with the new amendment the following has been added to the list, which includes the 29 hazards set out in the Housing Health and Safety (England) Regulations 2005.
So for landlords with dwellings in England, the following reasons will also cause a property to be deemed unfit from 20th March 2019 including:
Damp and mould growth
Excess cold
Excess heat
Asbestos and MMF
Noise
Biocides
Entry by intruders
Carbon monoxide and fuel combustion products
Radiation
Uncombusted fuel gas
Lead
Volatile organic compounds
Crowding and space
Personal hygiene, sanitation and drainage
Lighting
Domestic hygiene, pests and refuse
Food safety (inadequate provisions)
Electrical hazards
Water supply
Falls (baths, between levels, level surfaces and stairs)
Fire
Flames, hot surfaces etc
Collision and entrapment
Position and operability of amenities etc
Explosions
Structural collapse and falling elements
It is for the courts to decide whether the dwelling is fit for human habitation, however, a landlord might choose to carry out a Health and Safety assessment to ensure no hazards are present.
What does the ‘The Homes (Fitness for Human Habitation) Act 2018’ apply to?
Landlords with dwellings in England, with:
tenancies shorter than 7 years that are granted on or after 20 March 2019 (tenancies longer than 7 years that can be terminated by the landlord before the expiry of 7 years shall be treated as if the tenancy was for less than 7 years)
new secure, assured and introductory tenancies (on or after 20 March 2019)
tenancies renewed for a fixed term (on or after 20 March 2019)
from the 20 March 2020 the Act will apply to all periodic tenancies, where the tenancy started before 20 March 2019. This gives landlords 12 months from the commencement date of the Act before the requirement comes into force.
Once the Act comes into force on the 20 March 2019 this means that landlords with properties let in England on existing tenancies have 12 months to comply.
For any new tenancies that start on or after 20 March 2019, the Act will immediately apply.
When does a landlord not have to rectify an issue?
The landlord will not be required to rectify any areas deemed to be unfit in the following circumstances:
the problem is caused by a tenant’s behaviour
the problem is caused by ‘acts of God’ which are events like fires, storms and floods which are completely beyond the landlord’s control
the problem is caused by a tenants’ own possessions
the landlord was unable to get consent e.g. planning permission, or permission from freeholders if the property is leasehold. The landlord must be able to provide evidence of reasonable efforts to gain permission.
the tenant is not an individual, so that includes local authorities, national parks, housing associations and educational institutions.
the Act does not cover people who have ‘licences to occupy’ in place of tenancy agreements. This covers lodgers and some people who live in temporary accommodation.
What happens if you fail to comply?
This new Act gives tenants the power to sue landlords through the courts on the grounds that the property is ‘unfit for human habitation’. Previously tenants would have had to rely on their local council to force landlords to take action.
If the courts find that a property is not fit for human habitation, then they may require:
compulsory improvement to the condition of the property
and/or
compensation to the tenant
There are no specified limits on the level of compensation that can be awarded which is at the discretion of the judge who will consider the evidence.
There are a number of factors which will be taken into account by the judge presiding over the case which includes the perceived harm that has been inflicted on the tenant, the longevity of the issue and the severity of the unfitness in the dwelling. A landlord may also be ordered to pay the tenant’s legal costs.
In conclusion, if you have scanned the list and there are items on there that you feel need addressing in your rental properties, our advice is to get these sorted ASAP!
What if the tenant doesn’t notify me of any issues?
There no guidance on this is the legislation, however, if you or your agent are completing regular property inspections during a tenancy, this should identify any potential issues which can be resolved accordingly.
If a tenant attempts to take legal action over an issue that makes the property unfit for habitation (for example mould issues) and taking into account the fact they never made any attempts to notify the landlord or the agent of the issue, then in theory it would be difficult to prove they have a legitimate case? However, this is where belonging to a reputable landlord association comes in to play, as they can advise you how best to respond, but you would hope that the tenant would have to provide evidence that the landlord has not been reasonable and fixed any issues that have also been made aware of by the tenant and have acted with negligence.
Further information
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