Residential tenancies required to be "fit for human habitation" - Boodle Hatfield

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04 Feb 2019

Residential tenancies required to be “fit for human habitation”

The Homes (Fitness for Human Habitation) Act 2018 (the 2018 Act) will come into force amending the relevant provisions of the Landlord and Tenant Act 1985 (the 1985 Act) with effect from 20 March 2019.

The 1985 Act (as amended) will create a new duty on the residential landlords of both social and privately rented properties by including an implied covenant that the let property and any common parts are “fit for human habitation” at the time that a tenancy is entered into and will remain fit for human habitation for the duration of any such tenancy.

Whether or not premises are “fit for human habitation” will be determined by reference to the factors currently listed in the 1985 Act (which include repair, stability, damp, arrangement of the premises, natural lighting, ventilation, water supply, drainage and sanitary conveniences and the facilities for preparation and cooking of food and the disposal of waste water). A further factor of “prescribed hazard” (as defined under s2 of the Housing Act 2004) is added and will include any matter or circumstance amounting to a risk of harm to the health or safety of an occupier which arises from a deficiency in the dwelling. This is taken to include the 29 hazards currently listed in the Housing Health and Safety Rating System which includes matters as diverse as mould, electrical hazards, and excessive exposure to noise.

It will not be possible to contract out of the new provisions, and any attempts to do so will be void. However, the new provisions will not require landlords to carry out works for which the tenant is liable pursuant to its duty to use the premises in a tenant like manner or pursuant to an express repairing covenant or indeed where the premises are unfit for habitation as a result of the tenant’s own breach of covenant. Similarly, the provisions will not require landlords to rebuild or reinstate damage by fire, storm or flood or where to do so could put the landlord in breach of statute or an obligation to a third party such as a superior landlord.

Whilst it will, of course, be good practice for all residential landlords to ensure that residential premises are fit for human habitation, the relevant provisions will apply to the following tenancies:

  • New residential tenancies granted for a term of less than 7 years and entered into on or after 20 March 2019. This will include renewals and tenancies granted for a longer period with a landlord’s option to break in the first 7 years but will exclude tenancies that include a tenant’s right to renew which, taken together with the initial term, exceeds 7 years.
  • Periodic or secure tenancies that are in existence on 20 March 2019 or come into existence after 20 March 2019 (the most common example being where a statutory periodic tenancy is created at the end of a fixed term assured shorthold tenancy) subject to a one year grace period in respect for those tenancies in existence on 20 March 2019.

To aid compliance, landlords will, where applicable, have the benefit of an additional new implied covenant granting the right to enter and view the state of condition and repair subject to the requirements to provide reasonable notice. Where a property is let in breach of the fit for human requirement, tenants will have the right to bring a claim for damages against the landlord.

Landlords would be well advised to ensure that appropriate records, in the form of a photograph based check in and inventory, are prepared and reviewed throughout the tenancy as appropriate and that, where notified of potential factors affecting the habitation of the premises or common parts, appropriate steps are taken to investigate and remedy any such concerns.