How bad do conditions have to be to make a property unfit for human habitation?

At Anthony Gold, we often speak to clients who feel concerned about the condition of their home, or are dealing with disputes with their current landlord. From issues of repairs not being completed in a timely manner, unsuitable furnishings, and even more serious problems like damp, mould, or infestations, many tenants are left feeling that they are at the mercy of uncaring landlords.

In a study of 2000 adults in the UK, 24% reported that they had found mould in their property. With issues of mould and damp plaguing the private housing sector, as well as much of the UK’s stock of social housing, we are facing a crisis of homes which are unfit for human habitation.

In 2018, the UK government took action by introducing the Homes (Fitness for Human Habitation) Act 2018, to improve the standards of housing, and to force private landlords and social housing providers to take action. Our property law team have compiled everything you need to know about the Homes (Fitness for Human Habitation) Act. We will cover how to spot violations, what issues can mean a home is uninhabitable, and what action you can take if your landlord won’t fix the issue.

What is the Homes (Fitness for Human Habitation) Act 2018?

The Homes (Fitness for Human Habitation Act) 2018 already applies to all tenancies made after 20 March 2019. From 20 March 2020 it will apply to all existing tenancies with terms of less than seven years. The Act considerably changes landlord’s obligations to tenants.

Currently, under s11 Landlord & Tenant Act 1985, landlords are obliged to fix certain parts of a building which deteriorate from their original state (the structure and exterior and services for gas, electricity, water and sanitary services).

The Fitness Act works differently. The Fitness Act requires landlords to take action on issues which can affect a tenant’s health or wellbeing, in a timely manner.

The landlord must ensure the property is fit for human habitation by ensuring that the property is:

• in good repair (including any fixtures in fittings);
• stable;
• free from damp;
• properly arranged;
• has access to natural lighting;
• is properly ventilated
• has a reliable supply of hot water;
• up to code in terms of drainage and sanitation;
• equipped for the preparation and cooking of food and for the disposal of waste water;
• Free from any hazards that could cause accidental injury, or death.

The Homes (Fitness for Human Habitation) Act 2018 widens the kinds of issues that landlords will have to concern themselves with. This means that landlords will be obliged to undertake meaningful improvements to the property in the areas which it falls short, instead of just temporary repairs.

What other issues can make a home unfit for human habitation?

There are a number of issues which can cause a property to be considered unfit for human habitation. Although this is not an exhaustive list, these are just some of the issues which have been prosecuted under the Homes (Fitness for Human Habitation) Act 2018.

Both landlords, and tenants should be aware of the following, and take steps to address these issues when they arise:

• Unsuitable facilities for the disposal of wastewater;
• Presence of asbestos and manufactured mineral fibres;
• Presence of biocides (poisonous substances such as pesticides);
• Presence of carbon monoxide and fuel combustion products;
• Presence of lead;
• Unsafe levels of radiation;
• Proximity to uncombusted fuel gas;
• Proximity to volatile organic compounds (another harmful substance, often found in paint);
• Electrical hazards;
• Excess cold (so landlords will be obliged to put in adequate heating or insulation, rather than just maintaining existing systems);
• Excess heat;
• Overcrowding or too many beds per room;
• Risk of entry by intruders and other security issues;
• Poor lighting or lack of natural light;
• Excessive noise (so landlords could be obliged to install sound insulation);
• Poor domestic hygiene, pests, and refuse;
• Kitchen unsuitable for food preparation;
• Poor sanitation or drainage;
• Inconsistent, or missing water supply for domestic purposes;
• Risk of falls associated with baths, or bathing areas;
• Risk of falls on the level;
• Risk of falls associated with stairs and steps;
• Risk of falls between levels;
• Fire hazards;
• Hot surfaces and materials;
• Risk of collision and entrapment (such as a sash window likely to slam and trap fingers);
• Risk of explosions;
• Unsuitable positioning and operability of amenities (for example, a gas ring located millimetres from the wall so that it is not safe to light it);
• Risk of structural collapse and falling elements.

Thankfully, even those of us who spend our working lives looking at defects in homes have never seen some of these hazards (risk of explosion, for example) and others are very rare. One of the above defects would have to be present and significantly serious to render the property unfit for human habitation, which does not always necessarily mean unliveable. Rather, that the property is likely to cause undue discomfort or an actual risk to health and safety.

Who does the Homes (Fitness for Human Habitation) Act 2018 apply to?

The people covered by the Homes (Fitness for Human Habitation) Act 2018 include:

• Social housing tenants
• Tenants who are privately renting from a landlord, or letting agent

However, the Act does not apply to:

• Lodgers, and other tenants with live-in landlords
• Individuals living in temporary accommodation
• Some, but not all, property guardians

Tenants who are not covered by the Homes Act of 2018 may need to seek legal counsel to see if there are any other laws that they are covered by, which entitle them to the same rights as the Homes Act.

What are the other responsibilities of landlords and letting agents under the Homes (Fitness for Human Habitation) Act 2018?

As well as landlords having to educate themselves and their staff about what their obligations now are, the forthcoming wide application of the Fitness Act should be a trigger for a review of legal documents. It is not necessary to change new tenancy agreements, because the Fitness Act will imply obligations into all tenancies anyway, but it may be helpful to do so for clarity.

Agreements between landlords and their managing agents or contractors may cause more problems. Many set out which s11 repair issues the landlord will be responsible for and which the agent will be responsible for, or simply that the agent is responsible for organising repairs. The Landlord will have obligations under the Fitness Act which are not confined to repairs and could include improvements. These will not be covered by the agency agreements.

Other management agreements will repeat the wording in s11 and say for example that the agent is responsible for organising repairs to the structure, exterior and services. If there is a food safety issue, such as having no sink in the kitchen (because there never was one, rather than because it is broken) the agent will not be obliged to do anything about this, but the landlord will still be liable to the tenant.

Some landlords delegate responsibility for repairs to managing agents, paid for by a service charge. If this is the case, the tenancy agreements will have to be considered to see if they include charges beyond ‘repair’ and for ‘improvements’. In some cases, tenant consultation is required to amend a service charge.

None of these issues affects the landlord’s obligations to tenants to keep their home fit for human habitation. However, arguments between landlords and agents will delay works being done. If a tenant sues a landlord under the Fitness Act, then the landlord will have no recourse to recover losses from their agent if the agent was never obliged to deal with Fitness type defects.

If you, as a tenant, are concerned that your contracts may not cover the issues raised by the Fitness Act, then feel free to contact us for further advice and guidance.

Tenants’ rights if a property is uninhabitable

If there is one, or more issues in your rental property which make it uninhabitable, you may feel that you have no power in the situation. If the homeowner doesn’t take action, it is unlikely to benefit you to spend your own money to make repairs to the property. And DIY solutions may end up making the issue worse.

Ultimately, maintaining the property to a reasonable standard and keeping it fit for habitation is the duty of the landlord, or homeowner. But what can you do if they are reluctant to take action?

What if my landlord refuses to make repairs?

Your landlord is responsible for carrying out important repairs in your home, and ensuring that the property is fit to live in, and complies with the regulations set out in the Homes (Fitness for Human Habitation) Act 2018. When you notice an issue, you should take the following steps:

• When you notice a critical repair or issue which requires attention, you should notify your landlord in writing, and begin to keep a record of your communications.
• Take photos of the affected area, both for your landlord’s benefit as they arrange repairs, and to keep a record of the issue in case of any future disputes.
• Keep a record of all communications, particularly if your landlord is reluctant to make repairs, or is delaying them for a significant period.
• Obtain doctor’s notes, if you feel that the issue is impacting your health, or causing any existing health conditions such as asthma to worsen.
• If a significant amount of time has passed, with no solid plans to repair the property, you can contact your letting agent (if relevant), your local council’s private renting team. Or, get in touch with a solicitor if you would like to take legal action against your landlord.

If you would like to discuss bringing a possible case against your landlord, based on their failure to repair your property, you can contact a member of our property law by sending us your query at mail@anthonygold.co.uk or giving us a call on 020 7940 4060. Or, find out more about the services we offer by visiting our Housing Condition and Repairs service page.

Do I have to pay rent if my house is uninhabitable?

Although it may be tempting to stop making rent payments if your house is uninhabitable, and your landlord is delaying repairs, we don’t recommend doing this. Withholding rent will likely mean you are breaching the contract between yourself and your landlord, and they will be able to pursue you for this unpaid rent in Court. They may also use it as evidence in any future court proceedings, which may lead to a less favourable outcome for you, and your loved ones.

It is better to continue paying rent, and if the dispute with your landlord does result in court proceedings, you may be able to claim back the rent that you paid on the property which was unfit for human habitation. You may also be able to claim damages for any health issues or disruption that you suffered as a result of the issue not being addressed, but this is best discussed with your solicitor or other legal counsel.

How can I make a claim against my landlord for unfit housing?

To make a legal claim against your landlord for unfit housing, you will need to seek out the proper legal advice, to bring a case against them. The dispute may be able to be resolved with mediation, but you may need to be prepared for the possibility that the dispute may wind up in court.

In any case, the first step you should take is to find a trusted solicitor who can advise you on your case, how to proceed, and represent you if you choose to pursue a claim against your landlord. Our property law solicitors are well-practiced at resolving and pursuing landlord disputes, and always aim to secure the most beneficial outcome for our client.

To speak to a member of the property law team, you can contact us today, and somebody will be in touch shortly to discuss the unique circumstances of your case.

What are some examples of case law that uses the Homes (Fitness for Human Habitation) Act 2018?

The Homes (Fitness for Human Habitation) Act 2018 now applies to all tenancies with terms of seven years or less. But what does fitness mean? It is not defined in the legislation and there is no case law, yet, that specifically refers to The Homes (Fitness for Human Habitation Act) 2018.

However, we can get an idea from cases about other legislation that refers to fitness of rented properties. There is also a wealth of useful case law about furnished homes, which have had to be fit for human habitation at the start of the tenancy since Smith v Marrable (1843) 11 M& W5. These cases give us an idea not only of the kinds of things that might make a property unfit, as that is clearly set out in the legislation, but also how bad the condition of the property has to be.

Case Study: Infestation

In Smith v Marrable (1843) 11 M& W5 witness evidence was given that “all the beds in the house except one were infested with bugs; and one witness stated, that on the first night of occupying the house he caught thirty-four bugs in and about his bed, and on the second night not quite so many”. Two other witnesses agreed that there was a severe infestation which meant that they could not sleep, they felt insects crawling over them in bed and that there was a strong smell of bugs”. It was found that the house was not fit for occupation.

Before the Fitness Act, it would be very difficult to bring an action against a landlord for an infestation of bedbugs, save for in the specific situation of furnished accommodation at the start of the tenancy. Unless the infestation is the tenant’s fault, an infestation of bugs would be the landlord’s responsibility under the Fitness Act. The infestation in Smith v Marrable was unpleasantly severe. However, the norms of the time will also be considered. In Smith v Marrable the jury (as they then had in civil claims) had to decide whether the number of bedbugs was more than a “long and hot summer would be likely to produce”. It was taken as a given that every home may have some bedbugs in summer, which is thankfully no longer the case. So now a less severe infestation than that experienced by the Marrable family endured could well render a property unfit.

Case Study: Lack of ventilation in a bedroom

In SUMMERS v. SALFORD CORPORATION. — [1941] 2 K.B. 218 a broken sash cord to a window in a bedroom, meaning that the window could not be opened, rendered a property unfit for human habitation. The broken sash window fell on the tenant’s hand, injuring it. The window was the only window in the room. The house was small. Lord Justice Luxmore’s decision is worth quoting from extensively, as it deals with the important distinction between being fit for habitation and uninhabitable.

“I agree that, at first blush, it would seem extravagant to say that a house is not fit for human habitation because the cords supporting one of the sashes of one of the windows in it are broken or in such a state that they are likely to break at any moment. This may well be due to the tendency to connect the phrases “fit” or “unfit for human habitation” with a demolition order. … the duty imposed on the landlord by the Act is to keep the house … “in all respects reasonably fit for human habitation,” and that one of the essential matters by which its fitness for human habitation is to be ascertained is the existence or lack of ventilation. The usual method of providing ventilation for a room in a dwelling house is by a window or windows, which is, or are, so constructed as to open or shut without danger to the person opening or shutting it or them. If a room, especially a bedroom, has only one window and that window cannot be opened or shut without danger to the person seeking to perform that operation, that room may, in my opinion, be said to be not fit for human habitation.”

Morgan v. Liverpool Corporation also dealt with a broken cord in a sash window. A judge in that case concluded that a broken sash cord here rendered the property unfit for human habitation, concluding that whilst a broken cord in a large house with many windows would not make the property unfit, the only window in a small house with only two bedrooms may render a property unfit if it cannot be opened or closed.

So a small matter, which intuitively might seem too insignificant to render a property unfit for human habitation, passes the legal test in the right circumstances.

Case Study: Infectious disease

There is a wealth of case law on infectious disease. Until recently we would have noted this only as an interesting historical point, but sadly it may be once again relevant.

In Bird v Lord Greville (1884) Cab & El 317 a house was unfit for human habitation where a child with measles had left the house ten days previously. Steps had been taken to disinfect the property, but they were found to be insufficient. Likewise in COLLINS v. HOPKINS. – [1923] 2 K.B. 617 the house was unfit because the previous resident had been recently suffering from pulmonary tuberculosis. He had left the house six weeks before the tenants took occupation. The test applied was “Was there an actual and appreciable risk to the tenant, his family, or household, by entering and occupying the house in which the infectious disorder had occurred?”

Whether a property could be unfit for habitation because a previous occupant had been suffering from coronavirus would rely on medical evidence on how long the virus could last on surfaces, and the steps taken to clean the property, but this could make a property unfit.

Case Study: Inadequate security

Bole and another v Huntsbuild Ltd [2009] a home was not fit for human habitation due to inadequate foundations, meaning that garage doors did not lock and there was no security. It was found that “the obvious purpose of a dwelling is for it to be occupied and inhabited safely and without inconvenience.” If it does not meet this purpose, it is unfit.

A more recent perspective

Rendlesham Estates plc and others v Barr Ltd – [2015] 1 WLR 3663 summarised the recent case law on fitness for habitation and concluded that:

1. The specific facts in each case should be considered.
2. The property should be considered as a whole rather than defect by defect. So many more minor defects may have a cumulative effect.
3. For a dwelling to be fit for habitation … it must … (a) be capable of occupation for a reasonable time without risk to the health or safety of the occupants: where a dwelling is or is part of a newly constructed building, what is a reasonable time will be a question of fact…; and (b) be capable of occupation for a reasonable time without undue inconvenience or discomfort to the occupants.

The issues in this case causing properties to be unfit for habitation included damp, condensation mould, leaks and “a lift that …. broke down with monotonous regularity”.

Conclusion

Unfit for human habitation does not mean uninhabitable. A minor defect will not in itself make a property unit, but if it causes a risk to health or safety, or undue inconvenience, then a property may be unfit for human habitation. The purpose of The Homes (Fitness for Human Habitation Act) 2018 is to improve living standards, not to close or prohibit properties from being occupied. This should be taken into account when deciding whether a property is unfit for human habitation.

If you feel that your property may fit the criteria of being unfit for human habitation, we’d recommend speaking to a member of our property repair disputes team, to discuss your case and see if a resolution can be reached. Contact us, and a member of our team will be in touch shortly to discuss your situation.