Introduction

As of 20 March 2019, the Fitness for Human Habitation Act is in force for tenancies in England.

This legislation amends the Landlord and Tenant Act 1985 so that landlords must ensure their property is fit for human habitation at the start of the tenancy, and then maintain this standard throughout rest of the time the tenant lives in the property.

For most landlords in the private rented sector this will have little to no effect, as they already provide high-quality homes that tenants are happy to live in. This is why 84% of tenants are happy with their accommodation according to the English Housing Survey.

However, it is useful to know your obligations as a landlord. The purpose of this guide is to explain what these obligations mean for landlords and agents, including potential penalties.

What is meant by 'fit for human habitation'?

It is important to note that fit for human habitation does not mean that there is a defect in the property. It means a defect in the property that is so serious a court would consider the property to be unfit for that person to live in.

This is an important distinction because it means that the property has to be judged on the basis of the current property condition, and whether it is unsuitable for the actual person who lives in it as opposed to the generic tests applied by local authorities using the Housing Health and Safety Rating System. As a result, a younger, fitter tenant living on their own would have a higher threshold for what is unfit for them to live in than an older person or someone with a young family.

Who is responsible for enforcing this standard?

The purpose of the legislation is to allow for tenants to start court action directly without first involving the council.

If a claim is made through the courts it will be up to the judge to decide whether a property is unfit for human habitation based on evidence. As such, while informal letters from the council will certainly be useful to a tenant as evidence, they are by no means mandatory before action can be taken.

What criteria will the judge make their assessment based on?

A number of issues will be considered before a judgement is made. These include:

• repairs
• stability
• damp
• internal arrangement
• natural lighting
• ventilation
• water supply
• drainage and sanitary conveniences
• facilities for preparation and cooking of food and for the disposal of waste water
• hazards under the Housing Health Safety Rating Systems

Where one or more of these criteria is present, the courts will then objectively assess whether the defects in the property are enough for it to be considered unfit for human habitation.

What sort of penalties can be applied to the landlord?

As this amounts to a breach of contract, if the property is deemed unfit for human habitation the landlord may be sued for damages.

In addition, remedies are available to force the landlord to perform the repairs are available to tenants in this case.

Which types of tenancy does the Act apply to?

In England, the Act applies to secure, assured (including assured shorthold) and introductory tenancies as long as the term of the tenancy is for less than 7 years. It will come into force at different times however and also includes subletting tenancies.

New and renewed tenancies from 20 March 2019

The legislation applied immediately to any new tenancies granted on or after that date.

Where the tenancy is renewed on or after March 20 2019, the legislation applied at the point of renewal and landlords should check to ensure the property is fit for human habitation at that point. This includes statutory periodic tenancies that come into force on or after this date or any contractual periodic tenancies that are agreed on or after this date.

Tenancies that began before 20 March 2019

The legislation will not apply to fixed term tenancies that began or were agreed to begin before 20 March 2019 i.e. student lets signed up in January to start the following September). In addition, if that fixed term then turns into contractual periodic tenancy as agreed in the contract, it is likely that the legislation will not apply as they are not technically renewals. Nevertheless, landlords should be careful with this until there is case law available to verify this view.

For periodic tenancies that began before 20 March 2019, the legislation applies but the defect must arise on or after 20 March 2020.

Identifying and addressing properties that are unfit

Ultimately, the question of whether a property is unfit for human habitation will be decided on the facts by a judge if necessary.

Nevertheless, as a responsible landlord, you should ensure your property is not:

• neglected or in a poor condition
• unstable
• suffering from a serious damp problem
• laid out in an unsafe manner
• lacking in natural light
• lacking suitable ventilation
• suffering from a lack of supply of hot and cold water
• encountering issues with drainage or the lavatories
• difficult to prepare and cook food or wash up in

In addition to this, you should ensure that your property does not have any of the 29 hazards set out in the Housing Health and Safety (England) Regulations 2005.

Establishing unfitness with a HHSRS hazard

In cases where you may have a hazard, the Fitness for Human Habitation Act operates in a slightly different way than the HHSRS.

Unlike HHSRS, the decision as to whether the property is unfit must take into consideration the tenants' own circumstances. So, for example, if a property has a potential hazard in it but is let out to people who do not fall into a high-risk category, then the property is less likely to be deemed unfit than someone of high-risk. 

Further details on who may be considered high-risk for each hazard is available in the Government's HHSRS Guidance.

Are there any defects the landlord is not responsible for?

The landlord is not responsible for:

• defects caused by the tenant's negligence or intentional damage
• rebuilding the property in the event of destruction or damage by fire, flood, or a catastrophic weather event
• repairing items that the tenant is entitled to remove from the property i.e. their personal property
• carrying out works that the head landlord will not authorise. The landlord must make reasonable endeavours to contact the head landlord in this case

Does the tenant need to notify the landlord of the defect?

While nothing specific exists in the legislation, the expectation is that it will operate in the same manner as a landlord's obligations under Section 11 of the Landlord and Tenant Act 1985. As such the requirement to notify the landlord will depend on whether the property is rented out on a joint tenancy or on a room only basis.

What is a reasonable time to fix a defect?

As with repairs, under section 11 of the Landlord and Tenant Act the reasonable time to fix the issue will vary based on the severity of the defect. If a tenant has no working boiler in the middle of winter for instance, the landlord should be prioritising fixing of the defect much faster than in the summer.