The Homes (Fitness for Human Habitation) Act 2018 received its Royal Assent on the 20 December 2018 and will come into force on the 20 March 2019.
This new act is good news for tenants. The Act revives a clause which already exists in the Landlord & Tenant Act 1985 which requires all rented homes to be “fit for human habitation” not only at the onset of the tenancy agreement, but to remain so throughout the duration of the tenancy.
In determining whether a property is fit for habitation the Act encompasses the hazards that are found in the Housing Health and Safety rating system.
In England, the new s.9A(1) implies into any tenancy agreement 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.
This cannot be contracted out of by the landlord, nor can any contractual penalty be levied on the tenant for relying on the covenant (s.9A(4)).
The Act will apply to new tenancies (of less than 7 years duration). The Act will also apply to a tenancy which was a fixed term tenancy and then becomes a statutory periodic tenancy on or after the 20 March 2019.
In cases where the tenancy has become periodic before the 20 March 2019, the Act will apply to the periodic tenancy 12 months from commencement of the tenancy.
The Act inserts a new section 9A into the Landlord and Tenant Act 1985 which is headed “Fitness for human habitation of dwellings in England”.
Section 9A(1) provides as follows:
In a lease to which this section applies of a dwelling in England (see section 9B), there is implied a covenant by the lessor that the dwelling:
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
will remain fit for human habitation during the term of the lease.
The amended Section 10 provides as follows:
“In determining for the purposes of this Act whether a house or dwelling is unfit for human habitation, regard shall be had to its condition in respect of the following matters:
- repair,
- stability,
- freedom from damp,
- internal arrangement,
- natural lighting,
- ventilation,
- water supply,
- drainage and sanitary conveniences,
- facilities for preparation and cooking of food and for the disposal of waste water;
- in relation to a dwelling in England, any prescribed hazard;
and the house or dwelling shall be regarded as unfit for human habitation if, and only if, it is so far defective in one or more of those matters that it is not reasonably suitable for occupation in that condition.”
Prescribed hazard means any matter or circumstance amounting to a hazard for the time being prescribed in regulations made under Section 2 of the Housing Act 2004.
The definition of ‘hazard’ at Housing Act 2004 Section 2(1) as revised by Section 10 (3) will read:
“hazard” means any risk of harm to the health or safety of an actual occupier of a dwelling or HMO which arises from a deficiency in the dwelling or HMO or in any building or land in the vicinity (whether the deficiency arises as a result of the construction of any building, an absence of maintenance or repair, or otherwise).”
The property is regarded as unfit if “it is so far defective in one or more of those matters that it is not reasonably suitable for occupation in that condition”.
The Act also introduces an implied covenant that the landlord, or a person authorised in writing by the landlord, may enter the dwelling for the purpose of viewing its condition and state of repair which is permitted, contained within Section 8 of the Act as followers:
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.
The Act will allow tenants to use the Law so that they themselves can compel their landlords to address poor housing conditions and take effective action if necessary.
This is a very welcome change in disrepair cases. At present, it is unlikely the new changes would be in scope for legal aid funding other than those matters currently covered under Schedule 1 Legal Aid Sentencing and Punishment of Offenders Act 2012.
By Isabelle Alajooz who is head of the housing team at Abbotts Martin and is renowned for giving excellent advice and an outstanding level of service to her clients.