Fitness For Human Habitation – A Guide For Landlords

The Fitness for Human Habitation Act came into force on 20 March 2019. All landlords need to understand their responsibilities under the Act to stay on the right side of the law. We’ve put together this guide explaining what it is, what it means for landlords, how to protect your ROI, and how landlord insurance can help.

1) Firstly, what is the Fitness for Human Habitation Act?

The (Homes) Fitness for Human Habitation Act is a new Act that gives domestic tenants more power if the homes they rent are below standard. It makes it easier for tenants to take their landlord to court if there is a problem. It came into force on 20 March 2019 and expands on the Landlord and Tenant Act (LTA) 1985.

Take action today

  • First, read our guide below to find out more about the Act and what action (if any) you need to take.
  • Then, for further reading, look at the government’s guide to the Act.

2) Next, does the (Homes) Fitness for Human Habitation Act mean increased costs for landlords?

The new Act should not mean any direct increased costs for most landlords. If you already ensure that the property (or properties) that you rent meet the minimum standards or above, you won’t need to do anything. The Act may even help boost the ROI for these landlords. If rogue landlords, who offer below-market rents, are taken out of the equation, reputable landlords should see increased demand for their property.

If the property you rent does fall below standards, you will need to take action now to avoid significant legal costs.

Take action today

  • If you rent out a property (or multiple properties), it’s worth spending some time to assess its condition. If you have any concerns that a property does not meet minimum standards, take action to rectify the situation.
  • Are you unsure if your property meets the required standard? Ask a surveyor to assess it. Use the Royal Institute of Chartered Surveyors (RICS) surveyor directory to find one nearby.

3) Which types of tenancy are covered by the Fitness for Habitation Act?

The Fitness for Habitation Act applies to almost all private and social tenancy agreements in England and Wales.

This includes:

  • All tenancies that are less than seven years long. This includes any tenancies that are longer than seven years but could be terminated by the landlord before the expiry of seven years).
  • New secure, assured or introductory tenancies signed on or after 20 March 2019.
  • Fixed term tenancy renewals (signed on or after 20 March 2019).
  • Tenancies that are switched from a fixed-term to periodic on or after 20 March 2019.

Tenancies that are not covered:

  • Periodic tenancies (all tenancies signed before 20 March 2019) will have until 20 March 2020 to comply with the Act.
  • This Act does not cover shared ownership situations.

Take action today

  • First, double-check what tenancy agreement you have in place, so you know your obligations. You should have a copy of your tenancy agreement on file or, if you use a managing agent, ask them for a copy.

4) Understand what ‘fit for human habitation’ means, so you get it right?

The term fit for human habitation can be understood to mean whether a property is suitable for living in or whether there are conditions that mean that it’s not suitable.

Under section 10 of the Landlord and Tenant (LTA) Act 1985, a property is considered unfit for habitation if there is a problem with one or more of the following that renders it “not reasonably suitable for occupation”:

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

The new Fitness for Human Habitation Act has added a further condition to this list: “concerning a dwelling in England, any prescribed hazard”.

Landlords can look to the Housing Health and Safety Rating (HHSR) for direction on the scope of ‘any prescribed hazard’ There are currently 29 matters that can result in a property becoming unfit, including:

  • Mould
  • Damp
  • Excess cold or heat
  • Asbestos
  • Electrical hazards

 

Take action today

  • Consider each of these situations to decide if your property is fit for human habitation. In most cases, you can use common sense. For example, if the toilet does not work properly, that obviously leaves a property unsuitable for habitation.
  • Read the government’s guide to the Housing Health and Safety Rating.

5) What are the new obligations for landlords?

There are no new obligations for landlords in the Fit for Human Habitation Act. However, the Act does extend the obligations already laid out in the Landlord and Tenant Act 1985.

  • Properties now need to be fit for habitation at the start of the tenancy and throughout the tenancy period.
  • The obligations are extended to include the common areas of a property that the landlord has an interest in — for example, a communal hallway or stairs, a communal bin store, and the roof.

As noted above in 4), ‘any prescribed hazard’ has been added to the list of conditions that can render a property unfit for human habitation.

Take action today

  • Read the governments guide to the Housing Health and Safety Rating.
  • Private landlords also need to remember the proposed new regulations surrounding electrical safety. Under this guidance, it will become mandatory for electrical inspections to be carried out every five years. You can find out more here.

6) Why has this Act been passed now?

The (Home) Fitness for Habitation Act has been passed in reaction to the tragedy at Grenfell Tower. It received Royal Assent on 20 December 2018.

7) Protect your ROI by taking these steps

Even the most conscientious landlord could find themselves open to legal proceedings if something unexpected happens. If damage occurs to your property and you don’t have the cash to put it right, your tenant can sue you. This is where landlord insurance becomes a useful tool to protect your ROI. By taking out appropriate protection, you can be sure that if something does go wrong, you will be able to put it right straight away. It can also cover you for loss of rent if something happens that means your property cannot be rented out for a period of time.

It’s also a great idea to get your records organised if you don’t do this already. That way you will be able to show that you have acted responsibly by carrying out repairs as needed and undertaking all the relevant safety checks.

Take action today

  • Speak to an insurance broker that specialises in landlord insurance. You can benefit from their free expert advice to make sure you take out the right level of cover, as well as getting the best price.
  • Get your admin into shape. It’s essential to keep precise records of all repairs and inspections that you’ve carried out. If a tenant takes you to court, having documentation of the things you have done will enable you to demonstrate that you have taken your duties as a landlord seriously. If you like to keep a paper record, go out and buy yourself some filing folders so you can organise this efficiently. Alternatively, scan receipts and certificates and store these electronically. Don’t forget to back this up with cloud storage, just in case something happens to your computer and you lose your data.


8) What happens if my property is considered not fit for habitation?

The new Act gives tenants the power to take landlords to court for breach of contract. If you are found to have breached the tenancy contract an injunction will be issued, and you will be:

  • Ordered to pay for repairs.
  • Ordered to pay compensation to tenants.

It’s worth bearing in mind that damages will be awarded for the whole period of the tenancy. If you have a long-term let, you could be ordered to pay a substantial amount in compensation.

Take action today

  • If your tenant has notified you of a problem, get it checked out right away. You will be granted a reasonable period of time to put right any problems after you have been notified.
  • What is a ‘reasonable time’ will depend on the issue. For example, a broken boiler will need to be repaired much sooner in the middle of winter compared to a hot summer.
  • A surveyor (including a surveyor employed by you the landlord) can give expert evidence as to whether a property meets the required standards.
  • If you fail to put right any defects, then your tenant could sue you. You’ll need to carry out the necessary repairs and will be ordered to pay compensation.
  • Bear in mind that tenants don’t have to notify you of any problems in the common parts of the property (roof, communal hall etc.). Landlords are considered to be ‘notified’ as soon as the defect occurs.

9) Is the landlord always liable for keeping the property fit for habitation?

There are certain circumstances when the landlord will not be obliged to maintain or carry out a repair to ensure the property is fit for human habitation.

This is when:

  • The problem/damage is the result of the tenant’s behaviour.
  • When third-party consent is necessary but has not been given.
  • If the required work would breach planning permission.

The landlord is not responsible for:

  • Repairing or maintaining anything the tenant has a right to remove from the property
  • Rebuilding a property that is damaged by storm, fire or flood

10) What happens if a sitting tenant won’t allow me access to carry out repairs?

Landlords have a ‘right of reasonable access’ to enter a property to carry out repairs. In most cases, you’ll need to give at least 24 hours notice unless it is an emergency. What counts as an emergency includes:

  • If there was a fire in the property.
  • If gas can be smelt.
  • Structural damage that needs to be fixed urgently (e.g. the property is hit by a lorry.)

If your tenant refuses you entry to your property to carry out repairs or safety inspections contact them in writing. Explain in this letter that you won’t be held responsible for any injury or damage because of a fault in the property that you have not been able to put right. Depending on the severity of the issue, you may also need to apply for a court order to gain access, or you could serve your tenant an eviction notice.

Take action today

  • If your tenant refuses access and you write to them, make sure you keep a copy. This is proof of your correspondence in case you need to rely on this in court.
  • Don’t sit back and do nothing. Even if your tenant won’t let you in and you write to them, you also need to demonstrate your attempts to undertake your duties. For example, the Health and Safety Executive, which oversees the essential annual gas safety check, would expect to see at least three ‘documented attempts’ to get in to carry out this check.


11) Finally, is my property management agency liable for ensuring my property complies with the Act?

Ultimately, the responsibility for the condition of the property lies with the landlord. If you use a management agency to take care of your property, they will undertake inspections and ensure all is in order. If you have not visited the property yourself for some time, you might want to check your property for yourself for complete peace of mind.

Take action today

  • Ask your management company for evidence of safety checks and repairs etc.
  • If you have not visited the property for some time, it may be worth arranging this (at the convenience of your tenants). This will give you confidence that the condition of the property is acceptable.

Conclusion

The Fit for Human Habitation Act is now in force, and all landlords must ensure they comply. For most landlords, this will mean continuing to do what you’ve always done to keep your property in good condition. If landlords don’t maintain basic standards, tenants can now take legal action, and that can mean significant fines. Read our guide to understand what the Act means for you. And make sure your property (or properties) meet the standard required.