The Homes (Fitness for Human Habitation) Act 2018

The Homes (Fitness for Human Habitation) Act 2018 came into force on 20^th March 2019. The 2018 Act applies to new tenancies and amends the Landlord and Tenant Act 1985 to include an implied covenant by the lessor that:

“the dwelling-

1. Is fit for human habitation at the time the lease is granted or otherwise created or, if later, at the beginning of the term of the lease, and
2. Will remain fit for human habitation during the term of the lease.”

The section will make it much easier for tenants to claim against their landlords in cases of housing disrepair. In such cases, Claimants have traditionally faced the obstacle that “fraud apart, there is no law against letting a tumble-down house; and the tenant’s remedy is upon his contract, if any.” Cavalier v Pope [1906] A.C. 428. The Claimant’s remedy is generally governed by the terms of their tenancy agreement, which commonly contains obligations for repair and maintenance that are no wider than the minimum imposed by statute.

Claimants have usually had to rely upon section 11 Landlord and Tenant Act 1985, which imposes a minimum set of repairing obligations upon the Landlord:

“(1)In a lease to which this section applies (as to which, see sections 13 and 14) there is implied a covenant by the lessor—

(a)to keep in repair the structure and exterior of the dwelling-house (including drains, gutters and external pipes),

(b)to keep in repair and proper working order the installations in the dwelling-house for the supply of water, gas and electricity and for sanitation (including basins, sinks, baths and sanitary conveniences, but not other fixtures, fittings and appliances for making use of the supply of water, gas or electricity), and

(c)to keep in repair and proper working order the installations in the dwelling-house for space heating and heating water.”

The implied term in section 11 is narrow in its scope, and a number of cases have denied a remedy to Claimants who have suffered damage that arises from anything other than physical damage to the “structure and exterior” of the property. For example, in Quick v Taff [1986] Q.B. 809, the Claimant lived in a house that had very severe condensation which “rendered the living conditions for the plaintiff and his family appalling.” There was fungus and mould throughout the property and “a persistent and offensive smell of damp.” The House of Lords held that the majority of the claim in relation to the condensation had to fail because the condensation arose from a design problem with the windows, rather than physical damage or want of repair.

The Defective Premises Act 1972 provides a remedy only in respect of defects,

“arising from, or continuing because of, an act or omission by the landlord which constitutes or would if he had had notice of the defect, have constituted a failure by him to carry out his obligation to the tenant for the maintenance or repair of the premises”.

Thus if the disrepair falls outside the Landlord’s contractual responsibilities, the 1972 Act does nothing to improve the Claimant’s position.

With the new implied term of fitness for human habitation, there is greater scope to hold Landlords liable for damage arising from serious disrepair, and less scope for Landlords to defend such claims based on the manner in which the disrepair arose.

Whether or not a landlord finds his or herself in breach of the implied term will be a question of fact – the central question being one of reasonable suitability for occupation. Many disputes are likely to turn on the question of whether or not the disrepair in question is sufficiently serious to render the dwelling unfit for human habitation. The factors to be applied are listed in section 10 Landlord and Tenant Act 1985, which says,

“(1) In determining for the purposes of this Act whether a house or dwelling is unfit for human habitation, regard shall be had to its condition in respect of the following matters—

repair,
stability,
freedom from 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 in relation to a dwelling in England, any prescribed hazard;

and the house or dwelling shall be regarded as unfit for human habitation if, and only if, it is so far defective in one or more of those matters that it is not reasonably suitable for occupation in that condition.”

Given the similarity in the wording of the new provision, it appears likely that the case law relating to section 8 Landlord and Tenant Act 1985, which has long since gone into abeyance, is likely to be of some assistance.

The 2018 statute affords certain defences to the Landlord under section 9A(2) and (3). Practitioners should also be aware of other existing defences that probably can still be relied upon by the Landlord. For example, the common law requirement for reasonable notice to have been given to the Landlord is likely to apply to this section just as to other breaches of repairing covenants.

The Homes (Fitness for Human Habitation) Act 2018 has undoubtedly given a broader basis upon which tenants can claim damages for disrepair. On the other hand, it appears likely that Landlords will still have recourse to the defences provided for by statute and developed at common law in this area. It will be interesting to see how Courts in the coming years apply the existing law to the new provision.

Disclaimer: this article is not intended to give legal advice and should not be relied upon as such.

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Author: Tom Emslie-Smith Farrars (chambers@farrarsbuilding.co.uk)

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