By Geoff Davies, Specialist Housing Advisor, SNSCAB

Introduction

Last month saw the introduction of the Homes (Fitness for Human Habitation) Act 2018’) which aims to strengthen the rights of renters in England and enshrine a legal minimum standard of the condition of their rented home. It will also give renters a legal mechanism to take their landlord to court for breach of contract if they do not comply with their obligations.

Why was the Act Introduced?

According to the 2015/2016 English Housing Survey over a million tenants in the private and social rented sector live in accommodation with at least one category 1 hazard, which is defined as a serious and immediate risk to a person’s health and safety’.  The tragedy at Grenfell highlighted the lack of redress for social tenants.

• Social tenancies currently have no effective means of redress over poor conditions.
• Private tenants have to rely on overstretched local authority Environmental Health Teams to investigate and evidence poor conditions.
• The main disrepair provision that tenants use (s.11 Landlord and Tenant Act 1985) is not concerned with whether a home is fit or safe – rather to keep in repair the structure or exterior of the property or certain installations in the property. Equally, Part 1 Housing Act 2004 relies on a local authority taking enforcement action so does not give the tenant any actionable remedy even where serious hazards are identified.
• It covers the common parts of a building, e.g. unsafe cladding.

The act applies to both social and private tenants but does not apply to those with a ‘license to occupy’.

What does the act do?

A new term is implied into all tenancy agreements that the dwelling is fit for human habitation both at the time the tenancy begins and remains fit for human habitation throughout the term of the lease.

The landlord is not responsible for unfitness caused by the tenant’s failure to act in a tenant like manner.

In determining whether a dwelling is unfit for human habitation, regard shall be had to its condition in respect of the following matters:

• the building has been neglected and is in a bad condition
• the building is unstable
• there’s a serious problem with damp
• it has an unsafe layout
• there’s not enough natural light
• there’s 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’s difficult to prepare and cook food or wash up

One or more of the 29 hazards listed within section 2 of the Housing Act 2004 which include factors such as noise, risk of falls, fire safety, crowding and space, entry by intruders.

Under the Act, a 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.

What action can a tenant take?

• Tenants can apply to court for breach of contract and claim both damages and an order for specific performance (an injunction to compel works to be done).
• Because the new act works by implying a term into the tenancy, the tenant may also be able to treat the condition as a repudiatory breach of contract and walk away from the tenancy.

Evidence will be important –

• client will need to show what the poor housing conditions are, which of the prescribed matters apply,
• how the defects render the property unfit for human habitation (i.e. that it is not reasonably suitable for occupation in that condition),
• that the landlord is on notice of the defect and that it has not been remedied within a reasonable period of time.

Customers should be advised to take photos, try to get independent reports showing the defects and showing the effect on the occupants and keep records of all correspondence with the landlord.

Health Warning

The new implied rights don’t come with any additional protection from retaliatory eviction, so if your customer can be easily evicted (for example, by s.21 notice or on the basis of other grounds such as a tenant with substantial rent arrears) bear in mind the risk that a landlord might choose to serve a notice on your client rather than fixing the problems. (Although your client might still benefit from the retaliatory eviction provisions if the LA has served a ‘relevant notice’.

For private and Housing Association tenants it is therefore still advisable, in the first instance, to contact the Local Authority Housing Standards Team to inspect the property.  The tenant will then hopefully have a report which can evidence the unfitness and the landlord will have been put on notice.  If the LA then issues an Improvement Notice then this will also protect the tenant from any potential retaliatory eviction.