Things have come a long way since the Housing Act of 2004, which didn’t require landlords to remedy a defective property unless the local authority demanded it.
Tenants now have much more power in holding their landlord accountable for failing to provide safe and hazard free accommodation.
The Homes (Fitness for Human Habitation) Act 2018, which updates and expands on the Landlord and Tenant Act 1985 in England, sets out the blueprint for improved living standards in the private and social rented sectors.
FITNESS FOR HUMAN HABITATION
A property unfit for human habitation is defined as being ‘so far defective in one or more of those matters that it is not reasonably suitable for occupation in that condition.’
‘Matters’ refers to:
| • | Repair | • | Facilities for preparation and cooking of food |
|---|---|---|---|
| • | Stability | • | Water supply |
| • | Freedom from damp | • | Drainage and sanitary conveniences |
| • | Internal arrangement | • | Ventilation |
| • | Natural lighting | • | Facilities for the disposal of waste water |
The Homes Act adds to this list ‘any prescribed hazard.’
PRESCRIBED HAZARDS
The Housing Act 2004 defines a ‘hazard’ as ‘any risk of harm to the health or safety of an actual occupier of a dwelling or HMO which arises from a deficiency in the dwelling or HMO’. The hazards used in the Homes Act, are the 29 as listed in the Housing Health and Safety Rating System (HHSRS).
The 29 HHSRS hazards are:
| • | Damp and mould growth | • | Food safety |
|---|---|---|---|
| • | StabilityExcesscold | • | Sanitation and drainage problems |
| • | Excess heat | • | Water supply |
| • | Asbestos and Manufactured Mineral Fibres | • | Ventilation |
| • | Biocides | • | Falls associated with bath |
| • | Carbon monoxide and fuel combustion products | • | Falls on level surfaces |
| • | Lead | • | Falls associated with stairs and ramps |
| • | Radiation | • | Falls between levels |
| • | Uncombusted fuel gas | • | Electrical hazards |
| • | Volatile organic compound | • | Fire |
| • | Crowding and space | • | Flames, hot surfaces and materials |
| • | Entry by intruders | • | Collision and entrapment |
| • | Lighting | • | Explosions |
| • | Noise | • | Ergonomics |
| • | Domestic hygiene, pests and refuse | • | Structural collapse and falling elements |
Landlords and the Letting Agents who act on their behalf have the obligation to ensure that a property is free of hazards, and fit for habitation at the start of and during a tenancy.
It is recommended for agents to integrate hazards identified in the HHSRS into all inventory check-in reports and any identified hazards must be remedied before the tenancy begins.
Tenants are advised to report any hazard promptly during the tenancy, and landlords (or those authorized to act on their behalf) may enter during ‘reasonable hours’ to view or fix an issue, having given at least the required 24 hours notice for entering the property.
Once the landlord or agent is aware of a hazard, they are responsible for rectifying the issues within a reasonable amount of time. What constitutes ‘a reasonable amount of time’ depends on the severity and urgency of the issue. Landlords should keep a record of all documents related to repairs and maintenance during a tenancy, and should also provide evidence to the tenant, for example a tradespersons report, to prove that the issue has been fixed.
If the tenant will not allow access, agents should seek legal advice and keep a record of attempts made to contact the tenant including the date and time.
If the landlord or agent has been notified of a hazard, and are not actively making efforts to remedy it, the tenant then has the right to take them to Court.
The tenant also has duties and obligations regarding the maintenance of a property they rent, and in certain circumstances the landlord or agent won’t be held liable for conditions in and around the property.
If the tenant has failed to behave in a ‘tenant-like manner’ they may be the one who is liable for repairs.
Behaving in a tenant-like manner includes:
• Unblocking sinks, toilets, and drains;
• Changing light bulbs and fuses;
• Keeping both the interior and exterior clean (including windows);
• Maintaining level boiler pressure by re-pressuring when necessary;
• Bleeding radiators;
• Changing batteries in smoke and carbon monoxide detectors;
• General garden maintenance, such as mowing the lawn and sweeping up leaves;
• Keeping windows free from condensation; and
• Ensuring the property is kept free from pests.
A typical example would be where the tenant has not used air vents or opened windows where lack of ventilation results in an accumulation of damp and mould. The landlord isn’t responsible or liable for this because the tenant has not behaved in a tenant like manner.
Likewise, a landlord cannot be held liable for a hazard that is created by the tenants moveable property, nor where the tenant has directly caused the damage.
Other circumstances in which a landlord would be exempt from the liability for a properties unfitness:
• When the issue has been caused by a natural disaster caused by fire, storm, flood or any other inevitable accident.
• Or, if remedying the situation would cause the landlord to breach another legal obligation, for example, if the remedy would constitute making unauthorised changes in a listed building.
• When third party consent has not been obtained from an absent senior landlord or non-responding management company.
Regarding matters where the responsibility DOES lie with the landlord/agent and they don’t rectify a hazard within a reasonable amount of time, the tenant has the right to take court action for a breach of contract. This would be on the grounds that the property is not fit for human habitation.
Where the nature of the deficiency is very clear, the Court may decide that a property is indeed unfit for habitation without requiring an expert opinion.
If the Court finds the landlord or agent to be in breach of their obligations, the Court can order two things:
1. That the agent or landlord must make the property fit for human habitation.
2. And/or that the agent or landlord must pay compensation to the tenant.
In addition to the courts, the Local Authority may also exercise its powers to tackle poor practice from Landlords, including when necessary repairs are not carried out.
