Fit for human habitation?

We already know that there are several new regulations and laws that will take effect this year, not least the Tenant Fees Ban legislation for which now has a commencement date of 1st June.

We now have another new piece of legislation to consider which was passed on 20th December 2018 – the Homes (Fitness for Human Habitation) Act 2018. This was a private member’s bill introduced by MP Karen Buck and unusually it passed through all stages quickly and without too much amendment.

This new law will come into force on 20th March 2019; this is not far away, so all landlords and agents must consider whether action needs to be taken prior to this date. I do not intend to go into great detail in this article about the legislation but the main points are:

• The Act amended the Landlord and Tenant Act 1985 Sections 8-10 and principally introduced new Sections 9A, 9B and 9C
• It will apply to all new tenancies of less than 7 years (including new periodic tenancies) created after 20th March 2019
• Section 9A will imply a clause into all tenancies that – …will, at the start of the tenancy the property be fit for human habitation …and will remain fit during the whole term of the tenancy
• Essentially it means that tenants will be able to sue the landlord for breach of contract if it is found that the property is not fit for human habitation. Any claim made by the tenant will be heard in the County Court and not by the First Tier Tribunal.

One immediately thinks of the Housing Act 2004 and the introduction of the HHSRS (Housing Health and Safety Rating System). Without doubt there is a link here but unfitness is not a category 1 or 11 hazard under the HHSRS. The Court may take regard to the 29 hazards but will not be limited to those. Expert advice could be sought – or not! The Court could rely simply on facts such as knowing there is severe damp or lack of heating.

There will be certain exemptions as there are now:-

• The landlord will not be held responsible for unfitness caused by the tenants
• The landlord will not be held responsible if the property is destroyed by an insured risk such as fire, flood etc.
• The landlord will not have to carry out works which would put him in breach of legislation such as planning permission
• The landlord will not be held responsible if there is a superior landlord and permission cannot be obtained from such person(s) e.g. leaseholder seeking permission from the freeholder

So when taking account of this new legislation and the fact that it will come into effect on 20th March 2019, what must landlords and agents do now?

In November 2017, I wrote an article regarding the importance of House Visits – I must be clairvoyant! House Visits were really important then; from now on they will be absolutely essential.

Agents feel battered by legislation but it is right that rental properties should be fit for human habitation.

All properties which have tenancies which will still be in effect in March 2019 and any which will be starting after that date must be visited to ensure that they are ‘fit for human habitation’ as per the meaning of that phrase.

How could any landlord or agent know the condition of a property if it is not visited?

Of course, this is assuming that the tenant will give you access. If not, ensure that clear records are kept of the requests – in such a case the landlord or agent would not be liable any more.

Last year we had the introduction of the minimum EPC rating for let properties, minimum room sizes and now we have this fitness for human habitation. All of these regulations and many more mean that properties must be in good condition if they are to be let.

Whilst landlords and agents are feeling very battered at the moment with so much new legislation it is without doubt right that rental properties should be in good condition and ‘fit for human habitation’.

Those landlords who do not maintain their properties deserve to be punished and forced to upgrade them or leave the market altogether.

Frances Burkinshaw is an experienced independent trainer available nationally for in-house or group training. 01892 783961 or 07887 714341 or [email protected]