- January 16, 2020
- Blog
- By Eleanor Solomon
- 4 comments
Has the Homes (Fitness for Human Habitation) Act 2018 rendered your contracts unfit for purpose?
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 obligation is for the landlord to put and keep the property in a fit state for human habitation, having regard to 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;
This widens the kinds of issues that landlords will have to concern themselves with, and means that landlords will be obliged to undertake improvements instead of just repairs. The most common kinds of improvements will probably be around condensation and related mould growth: to install extractor fans, dry-line walls and install vents. However the inclusion in England of a defect that is a ‘prescribed hazard’, meaning any matter amounting to a hazard under the HHSRS regulations, brings all kinds of weird and wonderful issues into play, many of which most of us will have to google to understand. These are currently, in full (with my explanations in brackets):
- Facilities for the disposal of wastewater
- Asbestos and manufactured mineral fibres
- Biocides (poisonous substances such as pesticides)
- Carbon monoxide and fuel combustion products
- Lead
- Radiation
- Uncombusted fuel gas
- 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
- Crowding and space
- Entry by intruders
- Lighting (including natural) (so having no natural lighting could be an issue)
- Noise (so landlords could be obliged to install sound insulation)
- Domestic hygiene, pests and refuse
- Food safety
- Personal hygiene, sanitation and drainage
- Water supply for domestic purposes
- Falls associated with baths etc.
- Falls on the level
- Falls associated with stairs and steps
- Falls between levels
- Fire
- Hot surfaces and materials
- Collision and entrapment (such as a sash window likely to slam and trap fingers)
- Explosions
- Position and operability of amenities (for example a gas ring located millimeters from the wall so that it is not safe to light it)
- 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 mean unliveable, but rather is likely to mean causing undue discomfort or an actual risk to health and safety).
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 are concerned that your contracts may not cover the issues raised by the Fitness Act then contact us.
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4 thoughts on “Has the Homes (Fitness for Human Habitation) Act 2018 rendered your contracts unfit for purpose?”
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An interesting piece of legislation. As every property in England has every Hazard listed as a Category 2 Hazard, because there isn’t anything less than that including no hazard, it could be presumed that this Act would be triggered by only Category 1 Hazards.
But then, if the hazard makes the property so bad that it is unfit for human habitation, then surely the Local Housing Authority should be serving a Prohibition Order or using Emergency Powers under the Housing Act 2004, in which case would a landlord that receives a Prohibition Order for the condition of a property be expecting to be prosecuted under this Act and conversely, not expect to be prosecuted in cases where Improvement Notices or other action was taken by the Local Housing Authority because these actions imply that the Local Housing Authority was comfortable with the tenant remaining in the property and therefore it isn’t unfit for human habitation.
Thank you for your comment. There is a lesser hazard than a category 2 hazard, and that is no hazard. It is not the case that every property has category 2 hazards, although they are certainly not uncommon.
Whilst the Act uses HHSRS hazards as a reference for the categories that could make a property unit for human habitation, it does not use the category 1 or 2 hazard rating. You are correct that a Category 1 hazard probably would probably make a property unfit for human habitation, as it would present a serious or very likely risk of harm, but so could, for example, many category 2 hazards with cumulative effect. It could be that a court could find that one issue categorised as a category 2 hazard nevertheless made a property unfit for human habitation. There is no requirement at all to categorise the hazard as 1 or 2 to bring a Fitness claim; the test is different.
A Local Authority chooses not to prosecute for many reasons, including budget and staff constraints. Some Local Authorities have policies of serving notices straight away, others try to negotiate with the landlord first. The actions of the Local Authority in relation to a prosecution will not affect whether a tenant has a civil claim against their landlord under the Act. It will be for the tenant to prove to the court that the property is unfit for human habitation, and the court will not consider the system of category 1 or 2 hazards when deciding this.
There can only be a Cat 1 Hazard or a Cat 2 Hazard by definition
HA04 Section 2(1)
“category 2 hazard” means a hazard of a prescribed description which falls within a prescribed band as a result of achieving, under a prescribed method for calculating the seriousness of hazards of that description, a numerical score below the minimum amount prescribed for a category 1 hazard of that description;
It is interesting to consider a number of Cat 1 or 2 hazards being looked at as a whole that would lead to Unfitness, which almost returns to the old days of the Housing Act 1985 Section 189 Notices (Repair notice in respect of unfit dwelling-house.
It will be interesting to see what opinion the Courts have when a case finally reaches them.
There can be a Cat 1 hazard, a Cat 2 hazard, or no hazard at all as the defect is not present in the house. So for example if there is no damp and mould growth then there is no hazard of damp and mould growth. A little localised damp might fall under Cat 2 and severe damp may be Cat 1.
I agree that we can look forward to a lot of interesting caselaw in the years to come.