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Increased burdens placed on Landlords

21st March 2019

LANDLORDS – ARE YOUR PROPERTIES FIT FOR HUMAN HABITATION?

If you own a property and rent it out then from March 2019 your responsibility for the living condition of your tenants increases. The Homes (Fitness for Human Habitation) Act 2018 is set to have far-reaching consequences for Landlords and provides Tenants with the right to take legal action against them.

Background

Prior to the introduction of this legislation, a Tenant could only raise issue with a potential hazard in the property they were renting by contacting the Local Authority and requesting that an Enforcement Notice be issued against their Landlord. The Homes (Fitness for Human Habitation) Act 2018 (‘the Act’) has been introduced to give Tenants a direct cause of action against their Landlords in circumstances where the property they have been living in is ‘not fit for human habitation’. It will imply an obligation into all future leases for the Landlord to ensure that the property they are renting out is fit for human habitation both:

  1. At the commencement of the tenancy; and
  2. For the duration of the tenancy.

Failure to comply with this obligation will lead to Tenants bringing action in the County Court for:

  1. Specific performance, whereby the Landlord is ordered to take action to bring the property up to the appropriate standard; and/or
  2. Damages to compensate for any loss of amenity suffered by the Tenant.

When the Act Applies

The Act applies in both the private and social rented sectors in England only. For any Landlords concerned with properties located in Wales, Section 8 of the Landlord and Tenant Act 1985 will apply, which is beyond the scope of this article.

It will apply to all tenancies granted on or after 19th March 2019 for a term of less than 7 years. This will include new periodic tenancies, replacement tenancies (where the fixed term expires after 20th March 2019 and another term commences) and fixed term tenancies which become periodic after 20th March 2019. It is unclear at this stage whether the Act will cover starter tenancies.

In addition to the above tenancies, if there is a periodic tenancy already in place on 20th March 2019 then after 12 months this, too, will be subject to the Act.

It is important to note that it will not be possible for Landlords to contract out of the provisions of the Act within a lease and there can be no penalty imposed upon the Tenant should they wish to bring a claim.

The Meaning of Fitness for Human Habitation

There are a number of factors that will be taken into account when considering whether a property is unfit for human habitation, including:

  • Repair
  • Stability
  • Freedom from damp;
  • Internal arrangement;
  • Natural lighting;
  • Ventilation;
  • Water supply;
  • Drainage and sanitary conveniences; and
  • Facilities for the preparation and cooking of food and disposal of waste water.

The Courts will consider whether there is a defect and whether as a result the property is unfit for habitation. The Tenant must satisfy both elements to succeed. Given the infancy of this legislation, it is difficult to predict how the Courts will make their decisions but it is likely that each case will turn on its facts.

The Responsibility of the Landlord

The Landlord will be responsible for any defects to a dwelling that are deemed to make the property unfit for human habitation. In the case of a flat, this will extend to all parts of the building where the Landlord has an estate or beneficial interest, meaning that a Landlord may also be responsible for the common areas within a block of flats.

The Landlord’s liability starts to run from the date that they are given notice of the defect by the Tenant if the defect is in the dwelling itself. In relation to the common areas, the liability arises upon the defect occurring. In both circumstances, the Landlord has a reasonable period to rectify the defect; the amount of time that is reasonable to carry out rectification work will depend on the facts of the case and the nature of the defect.

Exceptions and Defence

There are a number of exceptions to the liability of the Landlord. The Landlord is not obligated to take action in the following circumstances:

  1. To rectify damage caused by the Tenant. The extent of this exception is unclear;
  2. Destruction or damage caused by fire, storm, flood or other inevitable accident;
  3. Damage to items that the Tenant is entitled to remove from the property;
  4. Where rectification action would put the Landlord in breach of other obligations such as planning permission, listed building consent or conservation requirements; and
  5. Where consent is required by a third party and, notwithstanding reasonable attempts to obtain such consent, this has not been forthcoming.

Further, if the Landlord is denied access to the property to carry out repairs then this can be used as a defence by the Landlord to any action brought by the Tenant. The Act implies a covenant that the Tenant must allow access by the Landlord to the property at a reasonable time of day on 24 hours’ written notice.

It remains to be seen how this legislation will affect the Landlord/Tenant relationship moving forward, however, it is likely that there will be an influx of claims against Landlords by their Tenants which an important reminder to all Landlords to ensure that the properties they rent out are in good condition and suitable for those living in them.

For further advice on any of the issues raised in this article, or any other property litigation issues, please contact Jason Alcock or Louise Palmer on 01543 263456.