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

The Homes (Fitness for Human Habitation Act) 2018 now applies to all tenancies with terms of seven years or less. I set out here  a full list of the issues explicitly covered in the legislation that might make a property unfit. But what does fitness mean? It is not defined in the legislation and there is no caselaw 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 caselaw 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.

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 that that experienced by the Marrable family endured could well render a property unfit.

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.

Infectious disease

There is a wealth of caselaw 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.

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 summerised the recent caselaw 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 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.

*Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*