The Fitness for Human Habitation Act: A Guide for Tenants

The Homes (Fitness for Human Habitation) Act 2018 brought in new obligations for landlords. Previously, the structure, exterior, and services in the building had to be fixed if they were broken. This limited the scenarios in which tenants could claim for unfit housing conditions. The old law still applies, but this new legislation means that there is an additional requirement that homes be fit for human habitation.

Our housing law experts have put together everything you need to know about the Fitness for Human Habitation Act 2018 in the following guide for tenants. Read on to find out more.

What is the Fitness for Human Habitation Act 2018?

Just before Christmas, on 20 December 2018, the Homes (Fitness for Human Habitation) Bill received its Royal Assent becoming the Homes (Fitness for Human Habitation) Act 2018 (‘FFHH’ for short). This Act makes changes to the Landlord and Tenant Act 1985 to require that all landlords ensure that residential properties are put and kept in a condition fit for human habitation both before they are let and during a tenancy. This applies to all social and private sector tenancies in England only.

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

The Fitness for Human Habitation Act came into force three months after it has been passed, on the 20th of March 2019. However, this only applied to tenancies made after that date. Therefore, any tenancy entered into before the 20th of March 2019 (ie. signed by both parties and executed) will not be covered by the legislation initially, even if the actual occupation begins after 20 March. However, any tenancy that is newly granted, is renewed, or comes into existence as a periodic from a fixed term after the 20th of March 2019 will be covered by the legislation immediately.

Tenancies which were periodic before March 20th will not be covered by the new provisions until that time, so they effectively have 12 months grace. Tenancies that are continuing as a periodic tenancy from a fixed term tenancy by way of contract (so not arising as statutory periodic tenancies) are likely not to be covered as they will not have come into existence on the expiry of a fixed term contract, but by way of a continuation of the fixed term. The legislation will not affect tenants which are on longer fixed terms starting before 20 March 2018 and carrying on for an extended period (such as 18 or 24 months) until those tenancies are renewed or become periodic.

What’s the difference between the Fitness for Human Habitation Act, and the Housing Health and Safety Rating System (HHSRS)?

Contrary to the misinformation spread by some private landlord advisors and pressure groups, the Fitness for Human Habitation Act (FFHH) is not the Housing Health and Safety Rating System (HHSRS) for tenants. The standard of fitness is to be assessed by the court using the 29 hazard profiles provided by the HHSRS, but not in the same way or to the same standard as the HHSRS. The HHSRS is a means of assessing notional risk in a property and improving it, whereas the FFHH is a means of assessing fitness for a specific occupier. 

Therefore, the FFHH is not assessed by considering whether there are category 1 or 2 hazards in a property (as the HHSRS is). FFHH is assessed based on the person actually occupying the property (as opposed to HHSRS which is based on notional occupiers from high risk groups). That is not to say that an HHSRS assessment for a property will not also be relevant to its fitness. Clearly, a property with numerous serious HHSRS hazards is unlikely to be fit. However, a property which has HHSRS hazards which are specific to the risk groups used for an HHSRS assessment may be fit for the specific occupier of the property, if they do not fall into one of those risk groups.

Are there any exemptions from the Fitness for Human Habitation Act 2018?

Although the Fit for Human Habitation Act of 2018 is taken very seriously by the courts, there are a few exemptions from the legislation. For instance, tenancies that are for more than seven years are not covered by FFHH and are exempt from s11 repairing obligations as well. However, a tenancy lasting seven years with a break clause at two years will be treated as a two-year tenancy unless the break clause is tenant only.

Some other instances where a landlord may be exempt from the FFHH Act include:

• Instances where a tenant has ‘not acted in a tenant-like manner’ and taken steps to maintain the property to a reasonable standard
• Issues caused by efforts to improve the property in case of destruction or damage caused by an accident
• Issues caused by building works which the landlord had not given consent to be carried out on the property

If you’re a tenant who is concerned about your current living situation as it relates to the Fitness for Human Habitation Act, or are a landlord that is facing a claim, we’d recommend seeking experienced legal advice. You can contact a member of our housing and property disputes team via our contact page.

What are the landlord’s obligations with regard to the Fitness for Human Habitation Act 2018?

It is likely that the case law already applying to section 11 disrepair will also apply to the Fitness for Human Habitation Act 2018. Therefore, a landlord will not be liable for fitness of a property unless they have been put on notice of the lack of fitness. However, that cannot be guaranteed and so landlords should make sure that they are inspecting regularly and are taking reasonable steps to be aware of fitness issues. Landlords are not required to fix or resolve anything which requires superior landlord consent, where the superior landlord is not giving that consent despite being asked. However, this does mean that superior landlord consent will need to be sought.

As with disrepair now, where a fitness standard is not maintained, the tenant will be able to seek damages and will be able to demand that the property is made fit.

For many private landlords, this should not be a huge concern. Most private residential property is fit for habitation and if it is not, then it’s vital that steps are taken immediately to ensure that it is.

Although for many years there have been significant issues with fitness for human habitation in the social housing sector, it is thought that the Fitness for Human Habitation Act 2018 will go a long way towards addressing these problems.

What does it mean for a property to be fit for human habitation?

To tenants who are struggling with the condition of their current property, it might be unclear what is meant by the term ‘fit for human habitation’. 

For a property to be deemed ‘fit for human habitation’, it must be capable of occupation for a reasonable time without risk to the health or safety of the occupants, and without undue inconvenience or discomfort to the occupants. 

This means that for the conditions to be illegal and unfit, they must present a real risk to the health and wellbeing of the tenants. This means that the threshold for a property to be deemed ‘fit’, is actually relatively low.

We cover this in more detail in our related post, How bad do conditions have to be to make a property unfit for human habitation? However, some of the most common tenant complaints which can lead to a property being deemed unfit for human habitation according to the FFHH Act of 2018 are:

• Infestations of pests
• Poor ventilation
• Infectious disease
• Mold or excessive damp
• Flooding
• Inadequate security

Can an entire block of flats be deemed unfit for human habitation?

We are increasingly seeing scenarios where an entire block or estate is deemed unfit for human habitation, due to a major issue that affects all the tenants. Leaseholders may be affected by the same issue, but have no claim under the Fitness for Human Habitation legislation, although they may have other routes to bring a claim.

Below are some of the most common issues which affect apartment blocks, which can sometimes be claimed against as part of the FFHH Act 2018. 

1. Asbestos

It is not uncommon for all the flats within a block or estate to have asbestos in the floor tiles, wallpaper, ceilings, and even within the walls. If undisturbed, this presents no risk and will not make homes unfit for human habitation. However, if a major incident such as a leak or building works disturbs the asbestos with the common parts or multiple flats, then this will make some or all of the homes unfit for human habitation. There is no requirement to bring a fitness claim that the tenants are actually harmed by the asbestos, the claim is for the potential harm, to obtain damages and most importantly, force the landlord to make the building safe.

2. Communal heating

If heating and/or hot water is supplied from a communal system and that system fails repeatedly or stops for an extended period of time, then the homes in an entire block can potentially be declared unfit for human habitation.

Likewise, the design of the heating or hot water system may be such that residents can never heat their flats to a comfortable temperature or have a sufficient flow of hot water to bathe. Conversely, some communal heating systems may make all flats, or all flats on a certain level, uncomfortably hot. This kind of design issue can also make an entire block unfit for human habitation, due to the possible impact on the tenants’ health and wellbeing.

3. Fire Safety

Design issues such as flammable cladding, insufficient means of escape in a fire, inadequate fire doors and the lack of working fire alarms (often all in conjunction) can make an entire block unfit for human habitation. Flammable cladding, in particular, was a significant factor in the Grenfell tragedy of 2017, and is something which is very much an area of concern for communities, and the UK government. 

If a fire risk assessment (FRA) has correctly given a block a risk rating of ‘intolerable’ then the block will be unfit for human habitation and indeed uninhabitable. This rating means that the building (or relevant area) should not be occupied until the risk is reduced, and the property is made safe. 

A ‘substantial’ risk could also equate to being unfit for human habitation. An FRA alone should not be relied on, and it is unfortunately still not uncommon for these assessments to be undertaken as a tick box exercise without real regard to the conditions in the building. However, it is a good starting point if you have concerns about fire safety in your block. FRAs for social landlords are often available online.

4. Windows or other design features

It is not uncommon that the design of a block means that every or most of the residents are adversely affected. This could be windows that do not open, are draughty or let in water. Poor design and a lack of proper ventilation could lead to mould growth, excessive damp, and a whole host of other problems which can directly impact the health and wellbeing of tenants.

Again, the recent tragic case of Awaab Ishek, a toddler who died from mould exposure in a social housing property in 2020, has led to proposed changes in the law, imposing deadlines on landlords to tackle toxic mould infestations in tenanted properties.

Improving Conditions for Everyone

It may be that one of the above issues alone is not severe enough alone to mean a property is not fit for human habitation. However, it is often a combination of issues, perhaps with some extra individual problems within flats, which can make a property – or even a group of related properties like a block of flats, unfit for habitation. If a property is unfit, then the tenant can bring a claim against their landlord for compensation and repairs.

The Home (Fitness for Human Habitation) Act 2018 gives tenants the opportunity to take action together to improve conditions for everyone in a shared building. Some of the above issues may not be obvious, and may be very expensive or difficult for the landlord to fix. However, given that they are often risking the health and safety of everyone in the block, and having a day-to-day impact on resident’s wellbeing, it is the landlord’s legal obligation to address the issues.

 The claims are sometimes too low in value for tenants to bring a claim on an individual basis. Tenants can use the Fitness Act to take action together to improve conditions.

If you are concerned that your building is unfit for human habitation, and you would like to take action, please contact Anthony Gold. Our team is on-hand to support individual tenants, and even tenants wishing to bring a shared claim against their landlord, through this often tricky legal process. 

Contact a member of our expert Housing Law team via our contact page, and we’ll be in touch with you shortly to discuss your case.

March 2020 Amendment to Landlord and Tenant Act 1985

Since the 20th of March, 2020, section 9B(4) of Landlord and Tenant Act 1985 means that the section 9A ‘fit for human habitation’ obligation applies to all periodic and secure tenancies in England that existed on 20 March 2019 and are ongoing.

This means that the provisions introduced by the Homes (Fitness for Human Habitation) Act 2018 now apply to tenancies in England of less than 7 years where:

1. a) The tenancy began on or after 20 March 2019 (including ‘renewals’), from the date of the tenancy.
2. b) The tenancy was for a fixed term that began before 20 March 2019, but became a secure or periodic tenancy on or after 20 March 2019 – the obligation applies from the date the tenancy became secure or periodic.
3. c) All periodic and secure tenancies that were already in existence on 20 March 2019, from 20 March 2020.

Except for some few tenancies where the fixed term is longer than a year (but less than seven years) that began before 20 March 2019, this means that the fitness obligation now applies to virtually all residential tenancies in England.

The fitness obligation is not retrospective, so breach of duty (and with it any damages for the breach) only arises at the point the obligation applied (though there may well be damages for disrepair or nuisance for a previous period).

Giles Peaker, who worked with Karen Buck MP on getting the Homes (Fitness for Human Habitation) Act 2018 in to law, said “I’m delighted that the duty on a landlord to keep people’s homes fit for human habitation now applies to nearly all tenancies in England, and that the rollout of the Act is complete. In these difficult times, having a safe home matters more than ever.”

Case Studies

Furnished Lettings and Fitness for Habitation

Even without a written tenancy agreement, landlords have responsibilities for repairs which they cannot avoid. This is because the law implies certain repairing obligations into tenancy agreements. The most well-known of these are the statutory implied terms set out in s11 of the Landlord and Tenant Act 1985.  

Under this provision, landlords are responsible for repairing the structure and exterior of the dwelling. They must also maintain installations in the dwelling-house for the supply of water, gas and electricity and for sanitation and the installations for space heating and heating water.

However, there are other repairing obligations implied into tenancy agreements which are less well recognised. One of these is the term implied at common law that furnished accommodation is fit for human habitation at the start of the tenancy.

This implied term only applies when furnished accommodation is let for immediate occupation. It is not applicable when premises are let unfurnished. The obligation also only arises at the outset of the letting. If the premises are fit for habitation at the commencement of the tenancy, there is no obligation on the landlord to keep them in that condition. However, if the accommodation is unfit at the time of letting and this is only discovered at a later stage, then the obligation is still triggered. It is the unfitness at the start of the tenancy which is key.

Fitness for Human Habitation Case Study: Smith v Marrable (1843) 11 M& W5

To understand what is meant by the expression ‘fit for human habitation’ it is useful to look at cases where the courts have judged accommodation to be unfit for human habitation.

They key case in this area is the 19th century decision of Smith v Marrable (1843) 11 M& W5.

In September 1842, Sir Marrable agreed to rent a furnished house in Brighton for a period of five to six weeks. The day after he and his family moved in, his wife, Lady Marrable, discovered that the house was infested with bugs. Following the landlord’s unsuccessful attempt to rid the house of the infestation, Lady Marrable notified the landlord that they were leaving the property, and they would only pay one week’s rent. The landlord sued for the rent balance.

The judges ruled in favour of the Marrables, concluding that an implied condition in the letting of a furnished house is that it shall be reasonably fit for habitation; if it is not (for example where it is infested with bugs) the tenant may quit without notice.

The principle was established that where a furnished property is let unfit for human habitation, the tenant has the right to repudiate the contract and move out.

Subsequent cases have built on this decision and provide further examples of when a property would be considered unfit. Examples from case law include properties where:

1. There is defective drainage or sewerage systems;
2. The property is infected (one case involved a property infected with measles, while another concerned a house in which a person had recently been suffering from pulmonary tuberculosis);
3. There is a lack of safety (where, for example, the walls are so dilapidated that it is unsafe to continue living at the property);
4. There is an insufficient water supply.

Accommodation may also be considered unfit for human habitation if there are hazards as defined by the Housing Health and Safety Rating System (HHSRS), introduced by the Housing Act 2004. This new system replaced the ‘fitness for habitation’ standard set out in the Housing Act 1985.

What can a tenant do if they are living in a property which is not fit for human habitation?

If a tenant moves into a property which is unfit for habitation at the outset, he or she has the option to leave and not be bound by the tenancy agreement. This is because the unfitness of the property is considered to be a repudiatory breach of contract (i.e. a breach that goes to the very core of the contract, preventing the primary obligations under the contract from being performed.) The tenant may also claim compensation for breach of contract.

It is very important for the tenant to seek specialist legal advice at an early stage if these circumstances apply. Paying rent or delaying in moving may result in the tenant being deemed to have affirmed the tenancy agreement and the right to leave may be lost. On the other hand, if rent is not paid, the tenant runs the risk of being sued for rent arrears.

If you would like to take specialist advice on any aspect of disrepair and tenants’ rights, then please contact a member of our housing team on 020 7940 4000, or visit our contact us page to make an online enquiry.

The Fitness for Human Habitation Act 2018: Frequently Asked Questions

What makes a house unfit for human habitation?

A house, or residential property, is considered unfit for human habitation if it has serious issues which make it unreasonable to expect a tenant to live there. Normally, these issues pose a direct risk to the tenant’s health, safety, or wellbeing. For instance, mould, flooding, structural damager or unreasonably high or low temperatures could all render a house as being classified as unfit for human habitation under the 2018 Homes Act. 

What is Section 9a of the Homes Fitness for Human habitation Act 2018?

Section 9A refers to a section of the Homes Fitness for Human Habitation Act of 2018; these cover the legal requirements for Fitness for human habitation of dwellings in England. This section of the act specifically outlines what is acceptable and what is not acceptable with regard to a residential property, and what criteria it must meet in order to be fit for human habitation. 

It is the landlord’s responsibility to ensure that all these standards are met. Otherwise, they may find themselves in breach of the law if the resident or tenant has given notice of issues with the property which are covered by the Fitness for Human habitation Act 2018.

What is Section 10 of the landlord tenant Act?

As of 2019, Section 10 of the landlord tenant act of 1985 outlines the specific areas which must be assessed to determine if a house is fit for human habitation. These assessments include, but are not limited to: ventilation, water supply, repair, stability, freedom from damp, facilities, and more. 

How can I make a claim against my landlord if my home is unfit for human habitation?

If you believe that your home is unfit for human habitation, and your landlord has refused to make the necessary repairs or address the problem, you should seek legal advice at your earliest convenience. There are many charitable organisations, such as Shelter and Citizen’s Advice, who can offer support and general guidance. However, if you wish to bring a legal claim against your landlord for compensation, you will need to speak to a solicitor or trusted legal professional. 

What advice can you give to tenants living in an unfit property?

If you are a tenant living in a property with serious problems, which may render it unfit for human habitation, we recommend:

• Documenting any and all issues you are having with the house, from when the issues started
• Keeping a record of each time you have communicated with the landlord or lettings agent about the problem, even if they do not respond
• If you are able to speak to an individual higher-up, do so
• Contact Citizen’s Advice, or a housing organisation like Shelter, who can offer free advice based on your specific situation 

Are you a tenant and worried about damp, mould and asthma in your house?