My tenants say that their flat isn’t fit for human habitation – what can I do?
As a landlord you may have heard of a recent piece of legislation, Homes (Fitness for Human Habitation) Act 2018, which has been in operation since 20th March 2019. The effect of this act is to amend the Landlord and Tenant Act 1985 by inserting three new sections, 9A, 9B and 9C, into the existing Act. The overall purpose of this change is to make it easier for tenants to hold a landlord to account for failing to provide or maintain residential rented accommodation to an acceptable standard. The new provisions make this obligation an “implied covenant” within a new or existing lease agreement.
What do those changes mean for me as a landlord?
The first and most important point to make about this act is that it does not impose any new obligations on you as a landlord. There has always been a legal obligation on landlords to ensure that residential accommodation is fit for habitation. What this act does is change the legal mechanism by which tenants can enforce this obligation by creating a direct right of action against a landlord for failing to properly maintain the rented property.
We understand that many landlords are concerned about the further obligations being imposed upon them and consequent costs of meeting those obligations. The purpose of this article is to:
- unpack the provisions of the Homes (Fitness for Human Habitation) Act 2018;
- orientate them with the wider legal obligations of a landlord;
- offer guidance to landlords in dealing with tenants making claims under these sections.
What is an “implied covenant” and what is a “right of direct action” against a landlord?
An implied covenant can be thought of as a clause in a contract which exists and operates even if its actual words are not written into the contract. Under the previous dispensation a tenant claiming that their rented accommodation was not fit for human habitation had to make their complaint to their local housing authority who would thereafter investigate and, if the claim was found to be true, take appropriate action against the landlord.
The major change brought about by this new act is that a tenant now has the right to bring a claim directly against a landlord using the implied covenant. In a nutshell:
- the underlying legal obligation to maintain residential property fit for human habitation has not changed;
- the mechanism for enforcing it has changed and a tenant may issue proceedings directly against a landlord to enforce this legal obligation.
Please bear in mind that a tenant can still elect to lodge a complaint with their local authority.
My standard lease agreement says that the tenants will be responsible for all maintenance
Unfortunately, that type of clause is void and unenforceable. A court, or the Housing Ombudsman, when considering such a clause would simply ignore it and treat it as it was not in the contract. It is worth remembering that the presence of a void clause within a contract is unlikely to invalidate the entire agreement.
The new sections also explicitly state that landlords may not contract out of their obligation to maintain the property fit for human habitation or impose any penalty on a tenant for enforcing their rights under these sections.
What does “fit for human habitation” actually mean?
The vast majority of landlords in Britain maintain their properties to the level of “fit for human habitation”. This legislation is targeted at those landlords who disrupt the housing market by providing sub-standard accommodation and endangering the health and safety of tenants.
The determination of whether residential accommodation is or is not fit for human habitation is a factual enquiry. Guidance for these factual enquiries can be found in:
- Section 10, Landlord and Tenant Act 1985; and/or
- Housing Health and Safety (England) Regulations 2005.
Section 10, Landlord and Tenant Act 1985
If a tenant can establish, as a matter of fact, that:
- the building has been neglected and is in a bad condition;
- the building is unstable;
- there is a persistent and serious problem with damp;
- the layout is unsafe;
- there is insufficient natural light;
- there is insufficient ventilation;
- the supply of hot and cold water is erratic;
- lavatories and drains are not functioning properly;
- The kitchen facilities are inadequate to prepare and cook food or wash up.
Then a court may find that a property is not fit for human habitation and direct the landlord to effect the necessary repairs, pay compensation to the tenants and pay their legal costs.
Housing Health and Safety (England) Regulations 2005
The provisions of these regulations overlap considerably with the provisions of section 10 Landlord and Tenant Act and set out an evidence-based system for assessing housing conditions. The Housing Act 2004 (under which these regulations are promulgated) 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 or in any building or land in the vicinity (whether the deficiency arises as a result of the construction of any building, an absence of maintenance or repair, or otherwise).”
The regulations provide:
- an extended and more technical list of what would constitute a “hazard”;
- a method of assigning the hazard to a category:
- Class I – extreme harm is reasonably foreseeable;
- Class II – severe harm is reasonably foreseeable;
- Class III – serious harm is reasonably foreseeable;
- Class IV – moderate harm is reasonably foreseeable.
- Directing the relevant local authority to institute enforcement actions in respect of specific classes of hazard.
Does the landlord have to pay for these assessments?
The Landlord and Tenant Act and the Housing Health and Safety Regulations work together to assist the court in determining whether a landlord has an obligation to affect certain repairs to the rented accommodation. In most cases expert assessment is not necessary. For example, if a lavatory was not flushing properly a court would very easily determine that the rented accommodation was not fit for human habitation and make the appropriate order for repair.
Expert assessment and evidence may be necessary in more complex cases such as a claim that the building is unstable or the paint used in the interior of the accommodation is exposing the tenants to unlawfully high levels of volatile organic compounds.
Are there any defences available to me as a Landlord?
Depending on the circumstances and the nature of the hazard a landlord could raise on or more of the following defences:
- The defect complained of does not constitute a hazard and the property is fit for human habitation;
- The tenant has damaged the property and is in breach of their covenant to behave in a tenant-like manner;
- The property was damaged in by fire, storm, flood or other inevitable accident;
- The tenant is entitled to remove from the disputed item from the dwelling;
- The requested works or repairs would breach planning permission, listed building consent or conservation area requirements;
- The requested works or repairs require the consent of a third party (e.g., a superior landlord or freeholder) which has not been given despite the landlord making reasonable endeavours to obtain the consent.
How can I protect myself from being sued by my tenants under the Homes (Fitness for Human Habitation) Act?
The good news is that if you are a responsible landlord who regularly inspects and maintains their property it is highly unlikely that you will fall foul of this legislation. The basic principles of good property management apply which include:
- Investigating and, if necessary, effecting repairs when defects are brought to your attention as soon as reasonably possible;
- Conducting a detailed inventory of the property prior to the tenant taking occupation;
- Conducting regular inspections of the property;
- Maintaining detailed maintenance records in respect of the property
What to do if litigation seems inevitable?
If it appears that a formal dispute may arise the most important thing for you as a landlord to do is gather all your evidence. This evidence could include:
- detailed record of all correspondence with the tenant;
- contemporaneous file notes of conversations (make sure you date them!);
- dates and times of inspections;
- correspondence with third parties whose consent may be required
- independent reports prepared by an expert.
My tenants are being unreasonable – can I evict them?
Homes (Fitness for Human Habitation) Act makes it clear that tenants should not be made subject to a “penalty” for trying to enforce their rights under the act. A landlord seeking to use the section 21 notice to retake possession of the property might find that this option is unavailable if there have been recent enforcement proceedings in respect of maintenance and repairs. If the tenants were able to establish that the landlord was using the notice to punish them for enforcing their rights a possessory action could fail. We highly recommend taking legal advice should you wish to evict tenants who have brought such claims against you.
Key Takeaways – Homes (Fitness for Human Habitation) Act 2018
- There is now a direct right of action by a tenant against a landlord;
- A clause in a lease agreement waiving this direct right of action is void and unenforceable;
- A court will undertake a factual enquiry to determine:
- The presence of a hazard;
- The appropriate repairs;
- The appropriate compensation (if any);
- Who should pay the legal costs.
- Retaliatory evictions are expressly prohibited.
This article is provided for general information only and is not intended to be nor should it be relied upon as legal advice in relation to any particular matter. If you require specific legal advice on any issue relating to the landlord/tenant relationship or your obligations to maintain your rented property, we at Burlingtons Legal LLP will be able to assist. Please contact us on +44 (0)20 7529 5420 to arrange a consultation.