Baljit Basra and Alex Loxton analyse changes to the 'fitness obligations brought in by The Homes (Fitness for Human Habitation) Act 2018 and predict an increase in the volume of claims.
On 20 December 2018 we saw The Homes (Fitness for Human Habitation) Act 2018 receive Royal Assent with introductory changes implemented on 20 March 2019.
After a year’s grace, the Act now amends the current implied “fitness obligations” under the Landlord and Tenant Act 1985, so it will apply to all new and existing periodic or secure tenancies as from 20 March 2020.
What does that mean for you as a Registered Provider and/or a local authority landlord?
The new Section 9A(1) of the Landlord and Tenant Act 1985 requires you to let properties that are “fit for human habitation”. You must ensure that all dwellings let under an assured (shorthold) or secure tenancy are:
- 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
- will remain fit for human habitation during the term of the lease.
This covenant will also apply to all parts of the building that you hold an interest or estate in, e.g. common parts or retained parts (the outside walls, windows and roof). Should you fail to comply, then your tenants will have a right to take action.
There are of course exceptions and/or potential defences that you can rely on which include the following:
- Where “unfitness” has been caused by a tenant’s failure to behave in a tenant-like manner.
- Where the damage has been caused by an inevitable act e.g. fire, storm or flood.
- Where carrying out works requires a third party consent or where by carrying out the work you would be breaching other regulations and/or enactments, for example, planning permission and/or buildings consent.
What does “fit for habitation” cover?
The amended Section 10 comprises of a list of conditions that could make a property “unfit for human habitation” and that list includes:
- freedom from damp
- internal arrangement
- natural lighting
- water supply
- drainage and sanitary conveniences
- facilities for preparation and cooking of food and for the disposal of wastewater and any prescribed hazard.
We expect to see the volume of claims for compensation being brought by tenants' solicitors to increase rapidly which will impact on your budgets and capacity to carry out works.
Consequently, we have already seen a revised version of The Pre-Action Protocol for Possession Claims by Social Landlords. The renaming of the protocol is arguably the most obvious change. The protocol has now been renamed, the “Pre- Action Protocol for Housing Condition Cases (England)”. In addition, all references to ‘housing disrepair’ have been replaced by “housing conditions” throughout.
Apart from some very minor wording tweaks in Annex A and B, the protocol remains the same. It is also important to note that the Pre-Action Protocol for Housing disrepair in Wales has remained the same.