The Homes (Fitness for Human Habitation) Act 2018 (“the Act”) received royal assent on 20 December 2018 and came into force in respect of certain tenancy agreements in March 2019, extending to all periodic tenancies (whether current or new) from March 2020.
The Act introduced an obligation on landlords to ensure that a dwelling house is fit for habitation at the commencement of a tenancy and remains so throughout the life of the tenancy.
Prior to becoming law, the Act was in the pipeline for some considerable time. The Grenfell disaster proved to be a catalyst for implementation of the Act.
Purpose of the Act
The government’s published position in relation to the purpose of the Act was as follows:
“It is designed to ensure that all rented accommodation is fit for human habitation and to strengthen tenants’ means of redress against the minority of landlords who do not fulfil their legal obligations to keep their properties safe”.
What does “fit for human habitation” mean?
The Act itself contains no definition of “fit for human habitation”, but instead states that 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,
- Draining and sanitary conveniences,
- Facilities for preparation and cooking of food and for the disposal of waste water,
- Any prescribed hazard.
It is not enough to merely establish the presence of one of these matters to declare a dwelling house unfit for human habitation. Rather, the dwelling shall be regarded as unfit if one or more of these matters is so far defective that the dwelling is not reasonably suitable for occupation in that condition.
Some of these matters are of course things that could have already given rise to a claim for housing disrepair pursuant to Section 11 of the Landlord and Tenant Act (“S.11”), notwithstanding the introduction of the Act, for example damp. However, the Act goes beyond S.11 by introducing additional matters that could give rise to a claim, for example, inadequate facilities for the preparation and cooking of food.
Remedies
If a tenant has a valid claim under the Act, the following remedies are available to them:
- An order by the court requiring a landlord to take action to reduce or remove a hazard (specific performance); and / or
- A claim for damages.
Landlords should also be aware of:
- Local Authority enforcement powers;
- Complaints to the Housing Ombudsman and / or Regulator of Social Housing; and
- Adverse publicity.
Battlegrounds
A common battleground with housing condition claims is that of condensation.
The Housing Ombudsman published a report in October 2021 in which it urged a zero-tolerance approach on damp and mould.
The Housing Ombudsman investigated thousands of complaints from residents about damp and mould while within a landlord’s complaints process and 56% of cases investigated resulted in findings of maladministration.
The Housing Ombudsman found that too often a landlord was wrongly blaming a tenant’s “lifestyle” for issues of condensation, rather than identifying the root cause of it and addressing the problem.
As has always been the case, causation in this area is key and unless issues of mould and condensation are properly investigated, diagnosed and repaired, there is always the risk of it coming back to bite.
Access
There is an implied covenant in the Act that a tenant will allow access to the dwelling house to the landlord or any person authorised in writing by the landlord, to inspect its condition and state of repair.
As a landlord lawyer, it is all too often that I hear of access difficulties preventing a landlord from being able to inspect and / or carry out repair works. This is a common theme that really there is no excuse for on the tenant’s part and which needs to be enforced on the landlord’s part.
Access difficulties can be enforced through civil injunction proceedings. Also, if properly evidenced by a landlord, access difficulties can result in a strike out of a specific performance claim issued by a tenant and / or a reduction in any compensation that the tenant may otherwise be entitled to as part of a housing conditions claim.
In my experience, the County Courts are well verse to dealing with access injunction cases and, if properly evidenced by a landlord, will grant injunctions in a bid to help landlords gain access to properties in order to comply with contractual and statutory repairing obligations.
Increase in claims
Many landlords feared that the introduction of the Act would result in a significant increase in the number of housing condition claims brought by tenants.
It is fair to say that the last couple of years has seen an increase in the number of claims. However, it is difficult to calculate the percentage of this that is attributable to the introduction of the Act, as opposed to being attributable to an increase in the number of claims management companies driving these claims by actively approaching tenants (in a way that is against the Solicitor Regulation rules).
My own experience is that the real driver in the increase is the latter, as these claims have been on the rise since around 2014 and well before the introduction of the Act. A partial explanation for this is the introduction of the capped fees regime in personal injury claims, resulting in many former personal injury firms turning their hand to housing disrepair as a more profitable option. This trend has continued and is unlikely to change unless and until we see capped fees introduced for housing condition claims.
However, the introduction of the Act is likely to have at least played a part in the rise of claims.
Practical considerations
There may be little public sympathy for landlords who complain about claims management companies driving housing condition claims on the basis that if there was no housing disrepair there could in any event be no claim. That said, landlords are working in challenging times, even more so following the COVID-19 pandemic, and battling the following major challenges:
- Financial challenges associated with investment in current homes and ensuring current stock is adequately maintained.
- Shortages of labour and materials.
- Rising cost of development.
- Increased and somewhat unforeseen costs of compliance with the Green Agenda.
- Access difficulties (see above).
- A claims management culture – where the ‘winner’ usually isn’t the tenant (with the tenant’s lawyer often receiving costs as much as 5 times the compensation paid to tenants).
- An inability to invest as much money as they would like back into properties due to the amount being paid out in housing condition claims.
In order to mitigate against the risk that some of these challenges represent, I would encourage landlords to consider the following:
- How well do you know your stock? Assess weaknesses / risk areas.
- Review voids processes – increasingly important.
- Review the management of communal areas.
- Don’t underestimate the importance of good record keeping.
- Consider tenant engagement. Communication is key.
This article was originally published in Estate Gazette on 26 March 2022. If you would like to discuss any of the issues raised in this article, please contact Jo Morton or a member of our Housing and Regeneration Team.
