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The Homes (Fitness for Human Habitation) Act 2018 is due to come into force on 20 March 2019. The Act will apply to all new tenancies (of a period of less than 7 years) created by private and social landlords from 20 March 2019. This includes new periodic tenancies arising out of fixed term tenancies which commenced prior to 20 March 2019. From March 2020, it will apply to all periodic tenancies regardless of start date.
But how exactly will it impact you as landlords, and how may it be used against you by tenants?
The Act inserts a new section 9A into the Landlord and Tenant Act 1985 which, in England, implies into any tenancy agreement a covenant by the landlord that the property:
This will apply in a similar way to the existing repairing obligation under s.11 of the Landlord and Tenant Act 1985 which implies a term into tenancy agreements that the landlord will keep in repair the structure and exterior of the property; keep in working order the installations for the supply of water, gas and electricity and for sanitation; and keep in repair and working order the installations for space heating and heating water.
The Act amends s.10 of the Landlord and Tenant Act which now provides that, when determining whether a property is fit for human habitation, regard shall be had to its condition in respect of the following matters:
The above list is not intended to be exhaustive, but the Act is intended to fill a gap in the law whereby some structural or design defects which cause a hazard to a tenant’s health and safety do not fall within the scope of a landlord’s s.11 repairing obligations.
The Act places an obligation upon landlords to ensure their properties are free from hazards that may result in a risk to the health and safety of tenants. Should they fail to do so, the legislation gives tenants a direct cause of action against their landlords, whereas previously, in many instances, they would have had to seek recourse from their local authority.
As with the s.11 repairing obligation, there are exceptions whereby the landlord will not be liable for the condition of the property. Most notably:
In the event that a landlord is in breach of its duty to ensure that the property is fit for human habitation then it will be in breach of contract and liable to pay damages. Tenants will also have the option of seeking injunctive orders requiring landlord to take steps to bring properties to an acceptable standard.
The Act may be seen as part of an inevitable push post-Grenfell to pressure both private and social landlords to ensure their properties are safe and fit for human habitation. Design defects which cause a risk to the safety of tenants, such as the combustible cladding used at Grenfell and many other buildings, are likely to be deemed to render properties unfit for human habitation when the Act comes into force
Landlords who do not take steps to remedy such defects will be hit with claims and face potentially significant liability to pay damages and substantial repairs bills.
No doubt the subject of how serious a defect has to be to render a property unfit for human habitation will be subject to extensive litigation. It will take a few years before we begin to get a clear picture of where the lines will be drawn.
We expect that there will be considerable overlap between the new provisions and the existing repairing obligations. Most landlords who are in breach of the duty to keep a property fit for human habitation on the basis of disrepair will likely already be in breach of their repairing obligations. It remains to be seen whether the court will raise the threshold for damages so that landlords in breach of the fitness for habitation provisions will face higher awards.
It will be important for social landlords to review their housing stock. There may be some properties that you know are susceptible to condensation or contain other design defects. It would be advisable to consider bringing forward maintenance programmes on such high risk properties.
If tenant solicitors identify particulars types of properties which contain inherent defects then they are likely to target landlords with claims under the new provisions. Social landlords may face a new surge of such claims on top of the increased disrepair claims that most are already facing.
Finally, landlords may wish to review their policies and procedures for dealing with reports of disrepair. It is often all too easy to dismiss, for example, condensation-related dampness as attributable to the tenant’s use of the property. Landlords and their officers and agents must now be ever more vigilant and alive to structural and design defects which are causing inconvenience to tenants and/or health and safety risks.
Social landlords would be well advised to provide in-house surveyors and repairs officers with training on how the change in the law affects their duties.
Croftons’ housing management team is on hand to guide you through these changes and assist you with any queries or concerns that you may have. Please do get in touch with our housing management team if you would further information or support on any of the issues raised above.
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