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The Homes (Fitness for Human Habitation) Act 2018

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The Homes (Fitness for Human Habitation) Act 2018: What Landlords Need to Know

New legislation aimed at ensuring rental properties are healthy and safe adds to the bewildering array of regulations already faced by residential landlords. Responsible landlords however should have little to fear.

What is it?

This new legislation aims to improve the standard of rental properties for tenants. 

Who does it apply to?

The legislation applies to rental properties in England whether there is a private landlord or a social landlord (meaning a Local Authority or Housing Association).  It is unlikely to apply to lodgers or where there is some other permission to occupy a place which is not a conventional tenancy.  The distinction is not always obvious so it is important to check. 

When does it start?

The Act applies to any tenancy agreement entered into on or after 20 March 2019.  From 20 March 2020 it will apply to all tenancies covered by the new law.

Isn’t there a law covering this already?

Yes there is but it is being amended by the new law.  There are in fact no new obligations and the aim is to ensure that landlords are meeting their existing responsibilities.

The Landlord and Tenant Act 1985 already implies a term into most tenancies requiring the landlord to carry out basic repairs.  This includes the structure and exterior of the building and the internal installations such as gas, electricity, water, sanitation and heating. 

In addition tenants can already seek assessment of the condition of their rental home by their Local Authority Environmental Health Officer and this takes place under the Housing Health and Safety (England) Regulations 2005 (“HHSR”).  The HHSR lists 29 different hazards as either Category 1 (presenting a serious risk to a person’ s health) or Category 2 (less serious).   Assessment is on the basis of the likelihood of the hazard affecting the tenant’s health and safety and how serious that might be.  Councils can already serve Improvement Notices on landlords or in extreme cases, a Prohibition Notice which could mean the tenant having to leave their home. 

Followers of the writer’s long running series of blogs on “Regulations for Residential Landlords” will be aware of their obligations under, for example, the Electrical Equipment (Safety) Regulations 1994, the Gas Safety (Installation and Use) Regulations 1998, the Smoke and Carbon Monoxide Alarm (England) Regulations 2015 and the Furniture and Furnishings (Fire) (Safety) Regulations 1988 (Amended 1989 and 1993).

So what is new?

While there are no new obligations for landlords, the new Act requires them to ensure that they are meeting those responsibilities and it gives tenants their own rights which will run alongside the existing enforcement powers of Local Authority Environmental Health Officers. 

Tenants can now sue their landlords in the County Court for breach of contract (namely the term implied by the Act that the tenant’s home will be fit for human habitation) and the Courts now have the power to compel the landlord to:-

Improve the condition of the property; and

Compensate the tenant.

So, what is “fit for human habitation”?

Ultimately this will be a question for a County Court Judge to decide which will be done by reference to one or more of the following:-

The building has been neglected and is in a bad condition;

The building is unstable;

There is a serious problem with damp;

The layout is unsafe;

There is insufficient natural light;

There is insufficient ventilation;

A problem with the supply of hot and cold water;

A problem with drainage or the lavatories;

Difficulties preparing and cooking food and/or washing up;

Any of the 29 hazards under the HHSR 2005.

Are there any exceptions?

As landlord you will not be required to provide a remedy even if the property is unfit for human habitation if, for example, the problem is caused by the tenant or an act of God (such as fires, floods and storms) or if the landlord has tried but has been unable to obtain, for example, planning permission necessary before work can be undertaken. 

As landlord can’t I just end the tenancy if the tenant complains?

If the tenancy is an Assured Shorthold (the vast majority of tenancies are) and the initial fixed term has expired, then it is true that a landlord can normally end the tenancy by giving the tenant two months’ notice under what is known as the Section 21 “no fault” procedure (although the continued availability of these notices is currently under Government consultation). However, under the rules against so-called “revenge evictions” that notice will be invalid if your tenant firstly gave fair notice of their complaint and you failed to deal with this adequately or at all, secondly, the tenant then complained to the Environmental Health Officer under HHSR 2005 and the Council served either an Improvement Notice or an Emergency Remedial Action Notice or a Prohibition Notice.  The bar on serving a Section 21 Notice runs for 6 months after the Council has served any Notice. 

Should all landlords be worried?

No.  The majority of landlords provide good homes for their tenants; at the end of the day by doing so the landlord is preserving his/her own asset which is the property and tenants tend to respond in kind if their home is well appointed by looking after this.  The good landlords letting homes fit for human habitation have nothing to fear and if the Government’s intention with the new Act is fulfilled they will stand in a better position in the market as unscrupulous landlords will not be able to compete and undercut them.

This Blog is written to raise awareness of these issues. While every effort has been made to ensure that it is correct at the time of first publication it may not be updated, even if the law changes.  It is not intended to be specific legal advice and cannot be relied on as such. Chattertons are not responsible or liable for any action taken or not taken as a result of this Blog.  If you think any of these matters affect you then we would be happy to advise.

Andrew Morley provides dispute resolution and residential landlord and tenant services from our Lincoln office.