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Anthony Gold > Blog > How bad do conditions have to be to make a property unfit for human habitation?

Eleanor Solomon

eleanor.solomon@anthonygold.co.uk

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  • April 14, 2020
  • Blog
  • By  Eleanor Solomon 
  • 6 comments

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.*

Eleanor Solomon

eleanor.solomon@anthonygold.co.uk

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6 thoughts on “How bad do conditions have to be to make a property unfit for human habitation?”

  1. Rachel says:
    January 17, 2021 at 12:31 am

    We moved into a rental that have bed bugs. Are the managers required to provide a different place to live until the building is treated for the problem? Who is responsible for treating all our stuff that’s been infected? Is there a protocol for apartment buildings?

    Reply
    1. Anthony Gold says:
      January 22, 2021 at 10:04 am

      This would fall under the Fitness Act and the landlord will be responsible for treating the infestation, including your affected belongings. The housing conditions pre-action protocol applies to these claims. There is no legal right directly to temporary accommodation, and bedbug treatments can sometimes be done in a day. However if the infestation is such that the property is unliveable and will take more than a day to solve then you can claim the costs of temporary accommodation from your landlord.

      Reply
  2. David Hawthorn says:
    May 18, 2021 at 3:27 am

    The grey water tank has been overflowing for three years and I have tried constantly to have this remedied but the landlord has constantly played me and the land agents off against each other and then finally swapped agents to avoid remedying defects

    Reply
  3. Jason Sallis says:
    November 27, 2021 at 6:10 am

    I am disabled in a wheelchair and me and my partner have had ongoing issues with mice in our second floor property since 2017 which came in through holes that were found in the wall. At first my landlord refused to deal with the issue by saying it was the tenants. I argued that due to my disability and my partner’s disability it was impossible for us to deal with the problem. Eventually my landlord agreed they would deal with the problem. Paramount Pest Control told recommended that my landlord should get a builder in to remove cupboards and repair the walls. My landlord refused to implement the recommendations of Paramount Pest Control. In April 2021 I was awarded a Disabled Facilities Grant by Barnet Council for kitchen Adaptations and DP Builders kindly filled in the holes when they installed the kitchen adaptations. Since April 2021 we have still seen mice inside our second floor property. Me and my partner are sleeping in the living room next to the kitchen and we are frequently woken by the noise of the mice. We have already found one dead mouse under our fridge freezer and one dead mouse in the bedroom.

    Reply
  4. Jonathan Henderson says:
    May 8, 2022 at 10:47 am

    Me and my family moved into a house provided by a housing association that already had problems with damp and mould, slugs, rats and mice and it’s freezing cold in winter even with the heating on all day and rather than do a proper check on the property before they moved us in, they just expect us to deal with it like they’ve done nothing wrong. We’ve had to have workers come out 6 times for one job or another in the first 6 months of living here, and there is a list of about 6 more serious jobs that need doing eg. the kitchen ceiling needs redoing because it’s dipping, regular rat problem that they just use poison and leave us to deal with an infestation of flies for 3 weeks and even after that we still get more rats because t hey have refused to look for the rout cause of the problem. I had to remove floorboards in the dining room to free a bird that somehow got under their. We get regular slugs in the house which is a sign of a mould problem because thats what attracts slugs into the house but according to the housing association this is ‘normal’ … I had to tape up a fan in the ceiling at the top of the stairs when the infestation of flies took over our house and the housing association tried blaming that on the cause of the mould even though i have photo evidence of the mould before we even moved in to the house. The fan was only taped up for 3 weeks to try and stop all the flies, the fan is basically just a hole that goes straight into the loft and this contributes to the house been so cold in winter. I have photo and video evidence of everything, I have even seen the homes fitness for human habitation act 2018 that clearly states all houses, privately rented or council, should be PROVIDED & maintained in a fit state for living, but we were moved into a house with so many things wrong with it and they expect us to live with the stress of all work that needs doing but I’ve had enough of it all. I asked specific questions about the house before i signed the tenancy agreement. When we viewed the house there was a huge fat slug trail on the kitchen wall, and i seen mould in 2 bedrooms and when i asked the housing officer about it she said don’t worry because a damp proof course had been done, so I thought all i had to do was clean it away and decorate and that would be that, but we still have to scrub away the mould every 2 or 3 months as it comes back and is spreading. The main office later confirmed a damp proof course had not been done but by then it was too late, we were already living in the property. The housing officer also lied about the area been quiet and peaceful when I asked. We also put up with regular antisocial behaviour. The police have had to come round several times and even an ambulance after I got that stressed i fainted and banged my head resulting in having to be hooked up to an ECG machine and my bloods taken which i have a document proving this given to me by the paramedics. We also have a 2 year old who keeps getting woke up by the noisy neighbours every single night , and a 9 year old with autism who is now too scared to sleep with his light off, has to have a tv on, the landing light has to be on and we have to sleep with our TV on in our bedroom so he has lighting that makes him feel comfortable enough to come in our bedroom if he gets spooked during the night. The police have issued a letter stating we need to be moved, my doctor has issued a letter stating we need to be moved, and the housing association are not paying any attention to any of it. The police even had to be called once recently because of the state of the house and the issues with neighbours pushed me into a state of wanting to end my own life as i can’t see any light at the end of the tunnel. We need some serious legal help with this because the housing association don’t care that they moved us into a freezing cold mouldy and rodent infested house without doing checks on it first, breaking the homes fitness for human habitation act 2018 and they expect us to let them just get on with the work that needs doing when the house needs to be empty with nobody living in it to be checked properly as theres something wrong with the foundations that you won’t see just by walking into a room and looking around which is all that they have done. They have refused to look for the rats nest in the loft which is where i told them i always hear things getting dragged about and i have video evidence of this, I asked the inspector to have a look but he refused. which is another problem, the housing association don’t ever do the jobs properly so we always have to have someone else to come and have a go. we can’t cope with his any more. They don’t care that a 2 year old toddler and a 9 year old with autism are effected by all this. can you please help???

    Reply
    1. AGhost says:
      May 10, 2022 at 9:52 am

      Dear Jonathan,
      Thanks for your comment. A member of the team will get in touch with you shortly. Kind Regards

      Reply

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