Homes (Fitness for Human Habitation) Act 2018 – What Landlords Need To Know!

I ‘spose I better talk about this thing. Briefly! Even though it’s been done to death by all the other landlord outlets. Ages ago.

But apparently some one of you actually rely on my blog to access the latest scoop. I love you adorable wallies, but seriously, you should join a decent landlord association if you’re really serious about keeping on top of your legal obligations. Or, if you’re genuinely bat-shit crazy, just continue winging it with me!

Despite my resistance to being the beacon of light, I knew I’d eventually get around to doing my homework – before the 20th March 2019 – even if it meant slopping together an eyesore during the bumpy morning commute on the school bus, just so I have something to hand in to avoid detention. Or in my case, to avoid a barrage of emails from fellow landlords wondering why I haven’t covered this bullshit.

So here it is, an ill-timed heads-up about what’s being enforced…err… tomorrow (from the date of publish)!

What is the Homes (Fitness for Human Habitation) Act 2018?

I think there actually has been a little bit of confusion about this Act, mostly that it’s been over-complicated and consequently interpreted as an entirely new legislation (which it is NOT!). So I’ll do my best to share it as I see it…

The ‘Fitness for Human Habitation Act 2018’ is an extension of the current ‘Fitness for human habitation Act’ found in section 10 of the Landlord and Tenant Act 1985.

The Fitness for human habitation Act is a piece of legislation that essentially ensures landlords provide a property fit for human habitation i.e. landlords must provide a structurally sound property with hot and cold water etc.

Ultimately, the legislation is supposed to stop landlords from providing squalor that’s barely even suitable for barnyard animals, and it’s something landlords with rentals in England and/or Wales should already be complying with. In fact, *most* landlords do comply, whether they’re aware of the Act or not.

The 2018 amendment to the act, which only applies to rentals in England, includes the insertion of Section 9 and small amendments to Section 10.

The good news is, there aren’t any new obligations for landlords under the Homes (Fitness for Human Habitation) Act 2018 (i.e. you don’t have to apply for any new licenses, you don’t have to serve any new notices etc), you just need to carry on being a good landlord. But, it does bring a couple of ‘practical’ changes.

In reality, the changes won’t have any meaningful impact on any half decent landlord, because it really IS ‘basic shit’ for any landlord with an ounce of decency; most of us are complying by default because we’re normal decent people. For those landlords that are currently falling short, will sadly, most likely continue to do so regardless.

There really isn’t much going on with this Act; out of all the waft, I suppose the most significant amendments, in terms of practicality, to note are Section 9A(1) and 9A(6):

Section 9A(1) clarifies that rentals in England should be ‘fit for human habitation’ from the start of the tenancy up until the end:

…there is implied a covenant by the [landlord] that the dwelling –
(a) is fit for human habitation at the time the lease is granted or otherwise created or, if later, at the beginning of the term of the lease, and
(b) will remain fit for human habitation during the term of the lease.

Section 9A(6) extends the obligation to the dwelling; if the dwelling forms part of a building (block of flats or bedroom in an HMO), the obligation extends to all parts of the building in which the landlord has an estate or interest.

Where a lease to which this section applies of a dwelling in England forms part only of a building, the implied covenant has effect as if the reference to the dwelling in subsection (1) included a reference to any common parts of the building in which the lessor has an estate or interest.

Yup, that’s it! Well, pretty much.

There are a few other noteworthy clarifications in the Act, which includes guidance on how the landlord (or a person authorised) should provide the tenant with ‘notice’ to gain ‘access’ to the premises for the purpose of viewing its condition and attending repairs, but it all seems pretty standard:

• only at reasonable times of the day, and
• only if at least 24 hours’ notice in writing has been given to the occupier of the dwelling.

Everything you need to know about the Homes (Fitness for Human Habitation) Act 2018 is covered in this guide on the GOV website. It’s long, but easy to digest (that’s what she said!). Oh come on, how could I not?

In any case, I’ll quickly cover the basics, and extract the parts I consider to be the need-to-knows!

What does “fit for human habitation” actually mean?

Section 10 of the Housing Act sets out the factors that are taken into consideration when determining if a house is ‘unfit for human habitation’, which are as follows:

• repair (i.e. the building shouldn’t be neglected or in bad condition),
• stability (i.e. the building shouldn’t be unstable),
• freedom from damp,
• internal arrangement (i.e. the property shouldn’t have an unsafe layout),
• natural lighting (i.e. there should be enough natural light),
• ventilation (i.e. there should be enough ventilation),
• water supply (i.e. there should be a supply of hot and cold water),
• drainage and sanitary conveniences,
• facilities for preparation and cooking of food and for the disposal of waste water;
• and the house shall be regarded as unfit for human habitation if, and only if, it is so far defective in one or more of those matters that it is not reasonably suitable for occupation in that condition.

To clarify, the above is nothing new, all landlords in England & Wales should already be ensuring they don’t fall short on any of the above.

However, with the new amendment, the following has been added to the list:

or any of the 29 hazards set out in the Housing Health and Safety (England) Regulations 2005

So that means, for landlords with dwellings in England, the reasons for causing a property to be deemed unfit will also include the following, from 20th March 2019:

• Damp and mould growth
• Excess cold
• Excess heat
• Asbestos and MMF
• Biocides
• Carbon monoxide and fuel combustion products
• Lead
• Radiation
• Uncombusted fuel gas
• Volatile organic compounds
• Crowding and space
• Entry by intruders
• Lighting
• Noise
• Domestic hygiene, pests and refuse
• Food safety (inadequate provisions)
• Personal hygiene, sanitation and drainage
• Water supply
• Falls (baths, between levels, level surfaces and stairs)
• Electrical hazards
• Fire
• Flames, hot surfaces etc
• Collision and entrapment
• Explosions
• Position and operability of amenities etc
• Structural collapse and falling elements

It is for the courts to decide whether the dwelling is fit for human habitation. A Housing Health and Safety Rating System (HHSRS) assessment is not necessary. However, a landlord might choose to carry out an assessment if they want to establish whether a serious health and safety hazard is present.

Who does the The Homes (Fitness for Human Habitation) Act 2018 apply to?

Landlords with dwellings in England, and:

• tenancies shorter than 7 years that are granted on or after 20 March 2019 (tenancies longer than 7 years that can be terminated by the landlord before the expiry of 7 years shall be treated as if the tenancy was for less than 7 years)
• new secure, assured and introductory tenancies (on or after 20 March 2019)
• tenancies renewed for a fixed term (on or after 20 March 2019)
• from the 20 March 2020 the Act will apply to all periodic tenancies. This is all tenancies that started before 20 March 2019; in this instance landlords will have 12 months from the commencement date of the Act before the requirement comes into force.

Once the Act comes into force on 20 March 2019, landlords with properties let in England on existing tenancies have 12 months to comply. For any new tenancies that start on or after 20 March 2019, the Act will apply immediately.

*Pokes you in the eye*

You still with me? Don’t worry, it’s almost over! I promise.

I know, this is excruciating! Believe you me, I would much rather be doing something/someone else, too.

The exceptions…

The landlord will not be required to remedy unfitness when: –

• the problem is caused by tenant behaviour
• the problem is caused by events like fires, storms and floods which are completely beyond the landlord’s control (sometimes called “acts of God”)
• the problem is caused by the tenants’ own possessions
• the landlord hasn’t been able to get consent e.g. planning permission, permission from freeholders etc. There must be evidence of reasonable efforts to gain permission
• the tenant is not an individual, e.g. local authorities, national parks, housing associations, educational institutions
• The Act does not cover people who have “licences to occupy”, instead of tenancy agreements. This may include lodgers (people who live with their landlord) some people who live in temporary accommodation, and some, but not all, property guardians.

What if you fail to comply?

Okay, so you should pay attention to this part!

This new Act gives tenants the power to sue landlords through the courts on the grounds that the property is ‘unfit for human habitation’, whereas before, tenants would have had to rely on their lousy local council to force landlords to take action.

Ever relied on the council for anything? “Chocolate teapot” comes to mind.

If the courts find that a property is not fit for human habitation, then they may require one or both of the following:

• compulsory improvement to the condition of the property
• compensation to the tenant

Currently there are no specified limits on the level of compensation that can be awarded, and this is at the discretion of the judge having considered the evidence.

Factors which will be taken into account include the perceived harm that has been inflicted on the tenant, the longevity of the issue and the severity of the unfitness in the dwelling. You may also be ordered to pay the tenant’s legal costs.

So, if you’ve happened to run your eyes down the list of factors that determine whether a house is unfit for human habitation and you felt a disconcerting twitch in your gut, because deep down, you know your mouldy rental property is a pile of junk… it isn’t too late to do the right thing in order to avoid a legal battle you probably won’t win!

Bottom line, fix yo’ shit up.

What if the tenant doesn’t notify me of any issues? Can they still sue me?

There’s no clear guidance on this, but I think common sense will rule here.

Firstly, landlords/agents should be making routine and thorough inspections (during tenancies, after and in-between), at which problems should be identified and resolved in appropriate time.

However, in the event that the tenant attempts to take legal action over an issue that makes the property unfit for habitation (e.g. a rampant mould issue) when they never made any “reasonable” attempts of notifying the landlord/management agent of the issue, I personally fail to see how they would have a legitimate case.

If a tenant uses their new super powers and files a court claim, you’d expect the onus to be on them to provide evidence that the landlord has been unreasonable and practised negligence. It’s like any other legal battle in that sense.

Ultimately, being able to make a successful claim over a leak the landlord was never made aware of would be fucking nuts!

What do you think?

More info/resources…

I’ve already scattered most of the following resources among the rabble, but here they are again, along with one or two others…

• Guide for landlords: Homes (Fitness for Human Habitation) Act 2018
• Guide for tenants: Homes (Fitness for Human Habitation) Act 2018
• Landlord and Tenant Act 1985
• Homes (Fitness for Human Habitation) Act 2018

Right, I think that about covers it! You still with me? WAKEY WAKEY!

We good? We good!

*Drops the mic*

Any questions/thoughts, you know what to do… below!

xoxo