The new Homes (Fitness for Human Habitation) Act 2018 is due to come into force on 20 March 2019.

This is following longstanding concerns about poor property standards in the rented sector, particularly the private rented sector. The English Housing Survey 2015/16 found that 40% of properties in the private rented sector had at least one indicator of poor housing such as damp.

It was against this background that Labour MP Karen Buck introduced a private member's bill to seek to amend the relevant section of the Landlord and Tenant Act 1985 to modernise the fitness for habitation test and extend the obligation to cover all landlords both in the private and social sector.

Why is the act needed?

A clause already exists in Section 8 of the Landlord and Tenant Act 1985 which requires all rented homes to be "fit for human habitation" at the start of the tenancy and to remain so throughout. However the clause is in effect obsolete as it only applies to properties with rent levels of under £80 per annum in London and under £52 per annum elsewhere which are rent limits that have remained unchanged since the 1950's.

Although there are statutory repairing obligations imposed on landlords to keep in repair the structure and exterior of their property, under section 11 of the Landlord and Tenant Act 1985, this legislation does not help tenants who are seeking to improve or enforce property standards against their landlord.

There is also a system of 29 "prescribed hazards" under the Housing, Health and Safety rating system (contained in the Housing Act 2004) which means a local authority can take enforcement action against a landlord where the numerical score of all the hazards in the property is sufficiently high. However local authorities who are responsible for taking such action against landlords cannot take action against themselves where the landlord is also the local authority which puts council tenants at a disadvantage.

Scope of the new Act

The new Act replaces Section 8 of the Landlord and Tenant Act 1985 with an implied covenant that the dwelling is fit for human habitation at the time of grant of the tenancy and the lessor will thereafter keep it fit for human habitation. The legislation will apply to:

  • tenancies shorter than seven years that are granted on or after 20 March 2019 (although tenancies longer than seven years that can be terminated by the landlord before the expiry of seven years will be treated as if the tenancy was for less than seven years)
  • new secure, assured and introductory tenancies entered into on or after 20 March 2019
  • tenancies renewed for a fixed term (on or after 20 March 2019)
  • from 20 March 2020 the Act will apply to all periodic tenancies; this includes all tenancies that started before 20 March 2019

The Act will therefore give existing landlords a 12 months period of grace to ensure that their property is fit for human habitation before the requirement comes into force for all landlords on 20 March 2020.

Criteria for fitness for human habitation

A landlord will need to make sure that their property is free of hazards which are so serious that the dwelling is not reasonably suitable for occupation in that condition. If the landlord fails to do so, the tenant has the right to take action in the courts.

A court will decide whether a property is fit for human habitation by considering the matters set out in the amended Section 10 of the Landlord and Tenant Act 1985 which are:

  • the building has been neglected and is in a bad condition
  • the building is unstable
  • there is a serious problem with damp
  • it has an unsafe layout
  • there is not enough natural light
  • there is not enough ventilation
  • there is a problem with the supply of hot and cold water
  • there are problems with the drainage or the lavatories
  • it is difficult to prepare food and cook food or wash up

In addition, the house will be deemed unfit for human habitation if any of the 29 hazards set out in the Housing Health and Safety (England) Regulations 2005 exist. The property will be regarded as unfit for human habitation only if it is so defective in one or more of these matters that it is not reasonably suitable for occupation in that condition.

How will it work?

As this is new legislation, it remains to be seen how it will be interpreted by the courts but is likely to be a matter of degree in each case. A small amount of damp on a wall may not render a home unfit for human habitation but a whole property riddled with damp and mould is far more likely to do so.

The legislation is designed in principal so that tenants can apply directly to the court using their own evidence, e.g. photographs of the disrepair, and do not have to rely on an expert surveyor. However in practice, the evidence of surveyors, other experts such as environmental health officers and medical evidence may be required to establish whether a home is rendered unfit for human habitation.

If a property is deemed unfit, then a breach is likely to entitle a tenant to bring a claim for rectification of the risk by seeking an order for specific performance of the landlord's repairing obligations and a tenant can also seek damages.

What are the exceptions?

A landlord will not be required to remedy the unfitness in the following circumstances:

  • the problem(s) have been caused by the tenant's own behaviour
  • the problem is caused by the tenant's own possessions
  • the landlord has not been able to get consent in relation to the works required e.g. due to planning permission, permission from freeholders etc. However there must be evidence of reasonable efforts made by the landlord to gain permission

The Act also does not apply to people who have 'licenses to occupy' instead of tenancy agreements. This may include lodgers (those who live with their landlord), some people who live in temporary accommodation and some, but not all, property guardians.