Homes (Fitness for Human Habitation) Act 2018: The legal right to a home fit to live in
On 20 December 2018, the Homes (Fitness for Human Habitation) Act 2018 received royal assent. It comes into force on 20 March 2019. Giles Peaker and Justin Bates, the authors of the Act, describe its passage through parliament and its main features.
Section 8 of the Landlord and Tenant Act (LTA) 1985 is one of those provisions that lawyers skip over on their way to find something else. At one time, it was the most important repairing right/guarantee of condition that a tenant had. It required properties to be fit for human habitation when let and kept in that condition during the tenancy. A landlord who failed to comply with that duty could be compelled to do so by injunction and could be made to pay damages.
For historical reasons, the right was tied to rent limits, so that only leases of less than three years with an annual rent of less than £80 (London; £52 elsewhere) were included. That had rendered the provisions almost totally pointless. The obvious solution was to remove the rent limits. Indeed, the Law Commission had called for such a reform in 1996,1Landlord and tenant: responsibility for state and condition of property, Law Com No 238/HC 236, 20 March 1996.
and that call had been supported by the Court of Appeal in Issa v Hackney LBC (1997) 29 HLR 640
and Habinteg Housing Association v James
(1994) 27 HLR 299.
On 24 June 2015, Karen Buck MP proposed a private member’s bill
to do just that. Her bill would have abolished the rent caps and updated the concept of ‘unfitness’ to include Housing Health and Safety Rating System (HHSRS) category 1 hazards (Housing Act (HA) 2004). Remarkably, that bill was ‘talked out’ by Tory MPs in 2015. Attempts to introduce it again as an amendment to the Housing and Planning Act 2016 were also defeated by the government.
Not to be deterred, Karen introduced it again as a private member’s bill in 2017
. This time, her bill went even further. It extended the fitness duty to the common parts of a building, in the same way that the LTA 1985 s11 covenant is extended by s11(1A). It also broadened the concept of ‘unfitness’ to include any hazard under the HA 2004 (ie, not limited to category 1 hazards).
The political atmosphere was different this time: the Grenfell Tower disaster had laid bare the limits of a deregulatory agenda; Generation Rent and other such groups were actively exposing the inequities of the private rented sector; and a minority government could no longer impose its will on parliament. The bill received government support and obtained royal assent in December 2018. The Homes (Fitness for Human Habitation) Act (H(FHH)A) 2018 comes into force for new tenancies granted after 20 March 2019 and for existing periodic tenancies on 20 March 2020.
What does it do?
The H(FHH)A 2018 amends the LTA 1985 to add new ss9A, 9B and 9C, and to amend s10. The changes apply to all the most common rental tenancies in England (ie, secure, assured, introductory). The Act implies a new term into those tenancies so that the landlord is obliged to ensure that the property is fit for human habitation when the tenancy is granted and remains in such a condition for the duration of the tenancy. There are prohibitions on contracting out or attempting to impose any penalty on a tenant who relies on this covenant.
The obligation extends to the dwelling itself and to any other part of the building in which the landlord has an estate or interest. This mirrors LTA 1985 s11(1A) so that, for example, where the landlord owns the whole block, the tenant can complain about fitness issues that affect either the flat or common parts (eg, the roof).
In deciding whether a property is unfit, one needs to have regard to the list of factors in s10. This requires the court to have regard to the condition of the property in respect of a list of specified matters (eg, damp, lighting, ventilation) and, importantly, ‘any prescribed hazard’. That is then further defined as ‘any matter or circumstance amounting to a hazard for the time being prescribed in regulations made by the secretary of state under section 2 of the Housing Act 2004’.
What this means in practice is that the 29 HHSRS hazards are automatically factors against which one judges the unfitness of a property. Importantly, if (as seems likely) the HHSRS is revised in the future, the revised standards will automatically be incorporated. It is not limited to category 1 hazards but includes any of the 29 HHSRS hazards that pose a risk of harm to the health or safety of occupiers.
The question for the court is whether that hazard means that the dwelling is not ‘reasonably suitable for occupation in that condition’ (LTA 1985 s10). If it is not suitable then the tenant can obtain an injunction to compel works to be done and/or damages. Because the H(FHH)A 2018 works by implying a term into the tenancy, the tenant may also be able to treat the condition as a repudiatory breach of contract and walk away from the tenancy.
There will, inevitably, be plenty of litigation on the meaning of ‘unfit for human habitation’, but practitioners should not be afraid of this. There are at least three sources of existing case law:
•The first concerns the ‘old’ cases under the unfitness laws as they operated before the rent limits deprived them of any meaning (see, for example, Summers v Salford Corporation  AC 283).
The third is those cases where there has been a contractual term imposing a standard akin to that now to be found in the H(FHH)A 2018. Such cases are rare but there was one in the High Court at the end of 2018 (Baillie v Savage  EWHC 3035 (Ch)
) and it is likely to be of interest in cases where the property is in a poor condition but has not yet caused any injury (property with a collapsing structural garden wall was unfit).
The H(FHH)A 2018 contains a number of defences and exceptions:
•In the usual way, the landlord is not liable for unfitness caused by the tenant’s failure to behave in a tenant-like manner or for unfitness that results from the tenant’s breach of covenant.
•There is no obligation to rebuild or reinstate the dwelling in the case of destruction or damage by fire, storm, flood or other inevitable accident.
•The landlord is not obligated to maintain or repair anything that the tenant is entitled to remove from the dwelling.
•The landlord is not obligated to carry out works or repairs that, if carried out, would put it in breach of any obligation imposed by any enactment (this was included to deal with problems posed by unfit properties that are subject to listed building restrictions or conservation area requirements).
•Likewise, where the needed works require the consent of a third party (eg, a superior landlord or freeholder, a neighbouring leaseholder or owner, or a council) and the landlord has made reasonable endeavours to get that consent, but it has not been given, then there is no liability.
In addition, although the Act makes no express provisions regarding notice, this was intentional. The expectation is that the law on notice under LTA 1985 s11 will apply with equal force (see Edwards v Kumarasamy  UKSC 40
; March 2017 Legal Action
When will it apply to tenancies?
The H(FHH)A 2018 will apply to all new tenancies of seven years or less that begin on or after 20 March 2019 (unless the tenancy is by an earlier agreement). This also includes all ‘renewal’ tenancies (fresh fixed-term agreements) granted on or after 20 March 2019. Any tenancy that was for a fixed term granted before 20 March 2019, but then becomes a periodic tenancy after that date, will have the Act apply at that point (secure tenancies following an introductory tenancy, or a statutory periodic assured shorthold tenancy after a fixed term). Lastly, all periodic tenancies in existence on 20 March 2019 will have the provisions of the Act apply to them 12 months later, on 20 March 2020, although the obligation is not retrospective. It is therefore likely that the large majority of tenancies will include the implied obligation by 20 March 2020.
There is no need for a full HHSRS inspection or report. The question is whether the property is unfit because of any of the factors listed in LTA 1985 s10. In some cases, simple photographs and a GP report would be enough (eg, black mould causing respiratory problems). In more complex cases, however, expert evidence may be needed as to the cause and extent of the unfitness. Practitioners are used to this sort of thing already when dealing with LTA 1985 s11 claims.
The Pre-Action Protocol for Housing Disrepair Cases is likely to need minor amendments in order to make it fit with these new provisions. But, even without amendment, it is a useful tool to use as the basis for pre-action correspondence.
Legal aid is available for claims under the H(FHH)A 2018 in the same way as for existing disrepair claims (ie, limited to claim to remedy the problem; damages will need to be funded under a separate funding arrangement).
The H(FHH)A 2018 works by implying a term into the contract. This should mean that damages are assessed on the contractual basis, ie, to put the tenant back in the position they would have been in had the contract been performed. In disrepair claims, this is usually expressed as the ‘loss of amenity’ basis (see Moorjani v Durban Estates Ltd  EWCA Civ 1252
; March 2017 Legal Action
There are estimated to be at least a million properties in England with a category 1 hazard and so, on the face of it, not fit for human habitation.
This is, of course, not the solution to all problems with housing conditions. The H(FHH)A 2018 only applies to the usual residential tenancies, so that licences (eg, temporary accommodation for the homeless) will fall outside its scope. Nonetheless, there are estimated to be at least a million properties in England with a category 1 hazard and so, on the face of it, not fit for human habitation. Readers should not hesitate to use this new Act to improve the lot of the occupiers of that, and other, sub-standard housing.
Housing conditions: tenants’ rights, by Jan Luba QC, Catherine O’Donnell and Giles Peaker, will be published by LAG in April 2019.