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Fitness for Habitation

The Homes (Fitness for Human Habitation and Liability for Housing Standards) Bill is due for its second reading on 19 January 2018. This is a private members bill, which is being promoted by Karen Buck MP.

The bill, in its current draft form, replaces section 8 Landlord and Tenant Act 1985. It provides for an implied covenant by the lessor in the lease/tenancy of any lease of a dwelling for less than 7 years:

  • That the dwelling is fit for human habitation at the time of the grant

and

  • That the lessor will thereafter keep it fit for human habitation.

This extends to any part of the building which the tenant has an interest.

The implied covenant does not require the landlord to:

  • carry out any works or repairs which the lessee/tenant is liable for by using the dwelling,
  • rebuild or reinstate the premises in the case of destruction or damage by fire or by tempest, flood, or any other inevitable accident,
  • repair or maintain anything which the tenant Is entitled to remove from the dwelling,
  • carry out works or repairs that would put the lessor in breach of any obligation imposed by statute or subordinate legislation,
  • carry out works or repairs which require consent from a superior landlord who has refused this consent

The landlord is not liable if the unfitness is due to:

  • the tenant’s own breach of covenant;

or

  • disrepair which the landlord is not obliged to make good because of an exclusion under section 12 Landlord and Tenant Act 1985.

Section 10 Landlord and Tenant Act 1985 is amended to include;

any other matter or matters that may amount to a Category one hazard under section 2 Housing Act 2004.

A Category 1 hazard is defined as “a serious and immediate risk to a person’s health and safety”.

These changes would only apply to new tenancies after the date that the bill came into force.

Why are these changes important?

These changes tackle two big issues.

The first, that tenants (private or social) have no way of enforcing property standards or fitness for habitation considerations themselves. Section 11 of Landlord and Tenant Act 1985 requires something to be out of repair, and the same applies to section 4 Defective Premises Act 1972. The statutory nuisance proceedings under section 82 Environmental Protection Act 1990 are only relevant where a nuisance is affecting the dwelling. There are a number of ‘fitness’ issues such as properties being prone to condensation and mould growth, or fire safety risks from construction or refurbishment which neither social or private tenants have no direct recourse currently.

The second issue the bill tackles is the lack of consistency across the country for enforcing fitness standards issues for private sector tenancies under the Housing Act 2004. Currently, the Local Housing Authority (The Council) is responsible for HHSRS (Housing Health and Safety Rating System) inspection and enforcement under the Housing Act 2004. The process for inspection and enforcement varies nationally, with as many as 50% of local housing authorities issuing one or no enforcement notices during the last year. The situation is worse for social sector tenants, as the local authority cannot issue a notice against itself, meaning social housing tenants currently have no recourse.

What do these changes mean?

The bill itself is not adding any more regulation for landlords. It is merely providing a means by which tenants can enforce existing standards.

This will however have a financial impact upon landlords. It will mean that landlords will have to bear the costs for bringing their properties up to a standard where there are no ‘category one’ hazards, which can be found in section 2 Housing Act 2004. These are costs which will in all likeliness be passed onto the tenant. Tenants would be able to bring a claim for rectification of risk and damages. Legal aid will be available for the removal of risk, but not for a damages claim.

What are the fitness standards?

The bill is importing the Housing Act 2004 HHSRS standards, so they’re not creating any new standards. Whilst Local Housing Authorities do have the powers to enforce, it is unlikely they will have the set up or man power to enforce the HHSRS standards.

Next Steps for the bill…

The bill is now at the crucial ‘second reading’ stage in the House of Commons, due on 19 January 2018. At this stage, a bill can be ‘talked out’ meaning it can be blocked from progressing to the next stage of drafting. The importance of this bill is significant, particularly in light of the recent disaster at Grenfell Towers. Private and social tenants argue that they need a way of challenging unfit living conditions that will have an effect on negligent landlords, and that is the aim of this bill.

We will be monitoring the progress of the bill, and provide further updates as they become available.

If you need any further information, please contact a member of our Property Litigation Team:

Email Simon Parrott

Email
Anna Jenkins

Lettings eBrief 18 October 2017