Update: New Landlord & Tenant Legislation

Landlord and Tenant disputes are a common occurrence. In many cases, tenants raise arguments regarding the state of the property, namely that it is in disrepair. This sometimes results in the tenant refusing to pay their rent until the situation is addressed. The issue here is that this can spectacularly backfire on the tenant. After much debate, the Homes (Fitness for Human Habitation) Act 2018 (‘the 2018 Act’) has been passed. The 2018 Act addresses these scenarios by implying a covenant (term) into all tenancy agreements, that homes must be fit for human habitation.

The 2018 Act essentially amends the Landlord and Tenant Act 1985. It now requires that any property that is let by a landlord, irrespective of whether that is privately done or as social housing, is fit for human habitation when a tenancy is granted. There is an onus on the landlord that the property remains fit for human habitation for the duration of that tenancy. This legislation applies to all tenancies that are shorter than seven years in length, as seen in section 1(3) of the 2018 Act. Crucially, the 2018 Act also extends to common/communal areas of a building. This is in response to the tragedy of Grenfell Tower in 2017.

The 2018 Act will come into force on 20th March 2019, which gives landlords some time to prepare accordingly for the change in the law. Despite the importance of this legislation, it is uncertain how many landlords will be affected. Logically, the overwhelming majority of landlords will have nothing to worry about should they have a well-maintained property. It would be contradictory if these properties were not deemed fit for human habitation. One can imagine that it is landlords of properties suffering serious disrepair issues that will be affected. This is of course, a minority of the total number of landlords.

For a property to be unfit for human habitation, there needs to be a serious defect in any of the requirements under section 10 of the Landlord and Tenant Act 1985:

• Repair

• Stability

• Freedom from damp

• Internal arrangement

• Natural lighting

• Ventilation

• Water supply

• Drainage and sanitary conveniences; and

• Facilities for preparation and cooking of food and for the disposal of waste water.

This is supplemented by the additional grounds that are found in Schedule 1 of The Housing Health and Safety Rating System (England) Regulations 2005. Examples of this include exposure to: damp/mould, excess cold or heat and asbestos. All 29 grounds within the regulations can be found here.

Should a landlord be responsible for carrying out repairs (it is important to read tenancy agreements as they sometimes impose this responsibility on the tenant) they ought to carry out the relevant work to address the issue. Despite this, there are exemptions. Under section 1(3) of the 2018 Act, a landlord is not obliged to: rebuild or reinstate a destroyed building; fix any unfitness that the tenant is responsible for causing; carry out works which are the responsibility of a superior landlord, or for which they cannot obtain third-party consent.

If a property does not meet the standard of the Housing Health and Safety Rating System (HHSRS), tenants may have the right to take legal action on the basis of breach of contract. The reason for this is that it is a breach of the implied covenant that the property is fit for human habitation. It is important to note that landlords and letting agents will not be liable where the ‘unfitness’ of the property has been caused by the action of their tenants. It is unclear how the courts will interpret this new legislation, but it is likely that there will be test cases in order to see how a court reasons. Whilst the practical implementation and interpretation of the legislation remains to be seen, it is without a doubt a significant victory for the protection of tenants.