Fitness for Human Habitation
The Homes (Fitness for Human Habitation) Act 2018 (‘the Act’) comes into force on 20 March 2019. This Act creates a duty on social housing landlords, private residential landlords and letting agents acting on their behalf (by implying a covenant in the tenancy agreement) to ensure that a property is ‘fit for human habitation’ both at the beginning of the tenancy and throughout.
These obligations extend to the dwelling and all parts of the building (including any common or shared areas) which the landlord has an estate or interest.
If a landlord does not comply with these obligations, the tenant can sue the landlord directly for breach of its tenancy agreement.
Whilst this Act extends to England and Wales, its practical changes only affect properties in England.
In determining whether a property is fit for human habitation, the Act amends the Landlord and Tenant Act 1985 by incorporating the hazards set out in the Housing Health and Safety Rating System (HHSRS) to the existing nine hazards listed in the 1985 Act. The courts must decide if the property is so far defective in one or more of these matters that it is not reasonably suitable for occupation.
Several exceptions may apply if the property is substandard due to the actions of the tenant, or for a reason outside of the landlord’s control, or reasonable attempts by the landlord to obtain consent from a third party for works were made but not obtained.
Landlords and agents acting on their behalf should ensure they have a photographic inventory and schedule of condition at the beginning, throughout the tenancy and on “check-out” at the end of the tenancy.
1. The Residential Lettings Agency Terms and Conditions and our Residential Property Management Service Agreements now include the following provisions:
a. A requirement for the letting agent/property manager to identify and advise the landlord if any part of the property or building is not fit for human habitation;
b. An obligation on the agent/manager to arrange for remedial work to be done, if requested by the landlord and at the landlord’s cost (once all consents required for the works have been obtained); and
c. An acknowledgement by the landlord that they understand their statutory obligations under this Act.
Please be aware that the Residential Lettings Agency Terms and Conditions and Property Management Service Agreements will be updated shortly to incorporate legislative changes being introduced under the following regulations:
I. Client Money Protection Schemes for Property Agents (Requirement to Belong to a Scheme etc.) Regulations which will shortly be made into law and are due to take effect from the 01 April 2019;
II. Energy Efficiency (Private Rented Property) (England and Wales) (Amendment) (Regulations) which will also shortly be made into law and are due to take effect from the 01 April 2019; and
III. The Tenant Fees Act 2019 which comes into force on the 01 June 2019.
2. The Compliance Checklist includes reference to the obligations under this Act and to provide for photographic schedules to be obtained;
3. The Pro-Forma Inventory and Pro-Forma Tenancy Inspection Schedule includes a photographic schedule to be attached to the inventory/schedules;
4. The Residential Landlord Health & Safety Policy now refers to this legislation and to the obligations under this Act;
5. The HMO Landlord Health & Safety Policy refers to this legislation and to the obligations under this Act.
A new guidance note ‘Guidance on the Homes (Fitness for Human Habitation) Act 2018’ looks at what is meant by ‘fit for human habitation’ and which tenancies are affected by this Act.
This Guidance Note also looks at the exemptions where the landlord will not be held liable, the possible consequences of a breach and a list of best practices which a landlord and letting agent should follow to ensure that they do not fall foul of these obligations.
The contents of this Newsletter are for reference purposes only and do not constitute legal advice. Independent legal advice should be sought in relation to any specific legal matter.