[co-author: Anna Crabbe]

Did you know that prior to 20 March 2019 there wasn’t an automatic legal right for tenants to live in a home fit for human habitation? That is no longer the case following the advent of the Homes (Fitness for Human Habitation) Act 2018.

Now, residential rented accommodation must be provided and maintained in a state of fitness for human habitation.  Until the new Act came into force an anomaly existed:  a landlord was obliged to repair a property but not obliged to bring a property up to a standard fit for habitation unless it was let on a very low rent or the property was in disrepair.  Disrepair was measured according to the standard of a property at the start of a tenancy. So, if a property was damp at the time of the letting, a landlord did not need to improve it even if it was so defective that it wasn’t fit to live in.

What is unfit for habitation? 

Accommodation will be considered unfit for human habitation if it is so far defective in one or more of the following categories that it is not reasonably suitable for occupation:

• repair;
• stability;
• free 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;
• any prescribed hazard (meaning a hazard posing risk of harm to the health or safety of an occupier which arises from a deficiency in the property or prescribed in regulations).

Where the accommodation is in a building with common parts, the fit for habitation obligation will also apply to the common parts. This means that a landlord will have to remedy, for example, damp in a common hallway and not just in the living accommodation.

Which leases are caught?

The Act applies to the following leases of residential accommodation in England:

• leases granted after 20 March 2019 for a term of less than seven years.
• leases granted after 20 March 2019 for a term of more than seven years if it is a secure tenancy, an assured or an introductory tenancy (these are types of tenancies mostly adopted by councils and housing associations and are granted on a periodic basis with no fixed term).
• leases granted before 20 March 2019 which will fall into either of the above categories after the end of 12 months (for example, statutory periodic tenancies arising after the end of a fixed term assured shorthold tenancy). This is to allow a 12 month grace period for pre-existing leases.

Why now?

The fit for habitation standards originally enshrined in the Landlord and Tenant Act 1985 only applied if the annual rent was less than £80 in London or less than £52 outside London. These figures have not been changed since 1957.

Whilst the Housing Act 2004 introduced the Housing, Health and Safety Rating System (HHSRS), it is widely viewed as too complex and is applied inconsistently by local authorities.  A tenant would have to rely on the local authority inspecting the property, identifying a risk of harm from a potential hazard and then taking enforcement action against the landlord.  Furthermore, the operating guidance has not been updated since 2006. The government has confirmed that the HHSRS will be reviewed in 2019.

By comparison, the Homes (Fitness for Human Habitation) Act 2018 provides a real and achievable direct route of redress for tenants living in substandard conditions. A tenant will be able to seek specific performance or damages through a civil process if their living accommodation or the common parts are not fit for human habitation.

Comment

It remains to be seen how the new  standard is tested through the courts and whether tenants issue proceedings against landlords to improve their accommodation in practice.  For the time being though, this marks a step forward in increasing the rights and powers of tenants in the private rented and social housing sectors to require a decent standard of living accommodation.

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